American Federation of Government Employees, AFL-CIO, Local 2303 v. Federal Labor Relations Authority, AFL-CI

• Decision Date: 03 April 1987
• Docket Number: LOCAL,No. 85-1248,AFL-CI,85-1248
• Citation: 815 F.2d 718
• Parties: 124 L.R.R.M. (BNA) 3208, 259 U.S.App.D.C. 287 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,2303, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 718

815 F.2d 718

124 L.R.R.M. (BNA) 3208, 259 U.S.App.D.C. 287

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2303, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 85-1248.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 15, 1986.

Decided April 3, 1987.

Petition for Review of an Order of the Federal Labor Relations authority.

Margaret Pena, with whom Mark D. Roth was on the brief, for petitioner.

Pamela P. Johnson, Attorney, Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., and Steven H. Svartz, Deputy Sol., Federal Labor Relations Authority, were on the brief, for respondent.

Before ROBINSON and STARR, Circuit Judges, and WRIGHT, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Local 2303 of the American Federation of Government Employees challenges an order of the Federal Labor Relations Authority dismissing as untimely the union's petition for review of a collective bargaining dispute over the negotiability of certain issues under provisions of the Civil Service Reform Act of 1978. ¹ We find that FLRA's decision was neither arbitrary nor capricious, and we therefore affirm.

I

In 1984, AFGE Local 2303 was engaged in bargaining with the Federal Aviation Administration over the status of employees at National and Dulles Airports. On August 24 of that year, the union submitted a request for a written allegation concerning the negotiability of a proposal that the agency provide, under certain conditions, overtime compensation and travel expenses to employees commuting to the airports. ² The agency replied on August 31 by declaring the proposal to be inconsistent with federal regulations and thus outside the duty to bargain. ³ Instead of then appealing the decision to the Authority, the union continued to bargain, and on October 15 submitted to the agency a second, abridged proposal. ⁴ The latter, in response, asserted that the new proposal contained only language it had already deemed nonnegotiable, reaffirmed its August 31 position, and announced that "[a] separate allegation of nonnegotiability [was] not appropriate." ⁵

Resigned to seeking the Authority's intercession, the union, on October 29, 1984, petitioned for review of the agency's nonnegotiability allegation. ⁶ The petition would have been timely had the statutorily-prescribed fifteen-day time limit ⁷ been measured from the date of the agency's rejection of the second proposal, but the Authority held that the October 23 letter "was, in essence, only a restatement of the earlier allegation." ⁸ The Authority thus deemed the petition a belated attempt to seek review of the August 31 allegation of nonnegotiability and accordingly dismissed the petition as untimely. ⁹

II

We are to sustain the Authority's order unless it is arbitrary, capricious, an abuse of discretion, or otherwise unlawful. ¹⁰ The potential locus of arbitrariness in the present litigation is the Authority's conclusion that the union's second proposal "effected no changes in the substance or language" of the original proposal. ¹¹ The union contends that the revised proposal was "materially different" ¹² from the original, and that the agency's letter of October 23 should therefore have triggered a new fifteen-day appeal period. The union concedes that the second proposal contained no new language, but insists that its elimination of specific provisions regarding travel-time compensation was sufficient to differentiate the two proposals and qualify the truncated submission for an independent negotiability allegation. Lack of explication in the agency's August 31 letter, ¹³ the union says, left it unable to ascertain the agency's view of the asserted conflict between the first proposal and federal law; without guidance, the union adds, it was left to speculate as to the nature of the agency's negotiability objections, and was led to make the deletions whereby the second proposal was fashioned from the first in an effort to respond to them. ¹⁴ The union maintains that it acted reasonably when it chose to continue negotiations in an attempt to modify the proposal to the agency's satisfaction, and that it should not be penalized for its failure to comprehend the breadth of the agency's objection. ¹⁵

For its part, the Authority simply reiterates its conclusion that the union's second proposal merely omitted portions of its first proposal, ¹⁶ which the agency had already declared nonnegotiable in its entirety. In its opinion dismissing the union's petition for review as untimely filed, the Authority characterized the second proposal as "merely a recombination of some of the parts of the original three part proposal which the Agency previously determined, on August 31, 1984, to be nonnegotiable," and expressed the view that "[t]he recombination of those parts effected no changes in the substance or language of the parts." ¹⁷ In announcing this decision, the Authority provided no test for determining whether one proposal is the same as another; instead, the Authority rested its opinion on the narrow judgment that the abridged proposal came within the scope of the agency's original allegation of nonnegotiability.

Although under other circumstances a more elaborate statement of the Authority's reasoning might be necessary, ¹⁸ we cannot disturb its conclusion in this case. The Authority is free to proceed on a case-by-case basis without formally articulating rules of general applicability, ¹⁹ and its expert constructions and applications of its organic statute are generally entitled to considerable deference. ²⁰ Here the Authority determined that in light of the agency's unqualified allegation of nonnegotiability in response to the union's first proposal, the union's second submission, which lacked any new proposition or language, was in essence a resubmission of the same proposal for purposes of Section 7117(c)(2)'s filing deadline. The Authority's judgment was reasonable under all the circumstances, and we decline to overturn it.

III

Perhaps conscious of the fragility of its principal challenge, the union also makes several arguments purporting to demonstrate dire consequences for collective bargaining posed by the Authority's decision. According to the union, the decision will disrupt the collective bargaining process by arming agencies with the means to force immediate and time-consuming appeals of nonnegotiability allegations--thus suspending further negotiations over issues touched on by the contested proposals, obstructing bargaining generally, and ensnaring unions into a fruitless cycle of agency objection and appeal. The Authority's decision, the union claims, impedes the give-and-take between negotiating parties that is a necessary part of the bargaining process. ²¹

We have often chided the Authority for its tardiness in processing appeals, ²² but this case does not involve any claim of unreasonable delay. More to the point, the union's fear that the Authority's decision invites manipulation by agencies is unjustified because the decision to trigger the review process, whose stringent time limit the union here protests, remains in the hands of the bargaining union, not the agency. The Authority's regulations clearly inform that the fifteen-day period for appealing agency allegations does not begin to run until the union receives an agency's written allegation of nonnegotiability which has been issued in response to a written union request for a negotiability determination; ²³ the union itself thus controls commencement of the appeal period. Where an agency issues an allegation not solicited by a bargaining union, the Authority holds it starts the running of the fifteen-day period only if the union chooses to bring an immediate appeal; the union may, instead, continue to negotiate and then launch the review process by formally requesting a written allegation. ²⁴ Finally, and perhaps most importantly, informal oral assessments of negotiability of proposals advanced during negotiations may be elicited from the agency without activating the formal appeal process. ²⁵ As the Authority has observed,

[b]y providing that an agency's allegation that a union's proposal is not within the duty to bargain must be made only in response to the union's request for an allegation, the Rule ensures that a union will not be diverted from further negotiations and forced to file an appeal before it wishes to do so, simply to avoid losing its right of appeal by the running of the time limit. Rather, the Rule preserves the union's right until it requests an allegation, thereby enabling it first to propose alternatives or to bargain over agency counterproposals as a means of resolving the dispute without invoking third-party intervention. ²⁶

The Authority's decision in this case in no measure diminishes a union's control over initiation of the appeal process.

The union further suggests that the Authority's order compromises the integrity of the process established by Congress for collective bargaining. By contrast, it appears to us that concerns of procedural integrity support the disposition the Authority made here. The procedure governing appeals of nonnegotiability allegations obviously demands some judgment as to whether serial proposals are identical or distinct, for otherwise the time limits of Section 7117(c) would become meaningless. Without a judgment of the sort the Authority exercised in this case, a union could resubmit any number of substantially identical proposals for agency allegation and thereby extend indefinitely the period during which it is eligible to file for review of that allegation.

The union objects additionally to the Authority's decision on the grounds that it impedes the give-and-take necessary for effective collective bargaining. The latitude the union seeks in appealing might, as a practical...