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

• Decision Date: 18 December 1985
• Docket Number: No. 84-1512,AFL-CI,P,84-1512
• Citation: 250 U.S.App.D.C. 229,778 F.2d 850
• Parties: 121 L.R.R.M. (BNA) 2007, 121 L.R.R.M. (BNA) 2247, 250 U.S.App.D.C. 229, 54 USLW 2353 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,etitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 850

778 F.2d 850

121 L.R.R.M. (BNA) 2007, 121 L.R.R.M. (BNA) 2247,

250 U.S.App.D.C. 229, 54 USLW 2353

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

No. 84-1512.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 16, 1985.

Decided Dec. 13, 1985.

As Amended Dec. 18, 1985.

William J. Stone, with whom Mark D. Roth, Washington, D.C., was on brief, for petitioner.

William E. Persina, Associate Sol., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., Steven H. Svartz, Deputy Sol., and Jill A. Griffin, Atty., Federal Labor Relations Authority, Washington, D.C., were on brief, for respondent.

Before WALD, GINSBURG and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge GINSBURG.

WALD, Circuit Judge.

The American Federation of Government Employees, AFL-CIO (AFGE or Union) seeks review of the Federal Labor Relations Authority's (FLRA or Authority) Interpretation and Guidance, 15 F.L.R.A. 564 (1984). In that decision, the FLRA held that the head of an agency has the right under the Federal Service Labor-Management Relations Act (Labor-Management Act), 5 U.S.C. Secs. 7101-35, to disapprove of an agreement containing a provision that is contrary to law, rule, or regulation, even if that provision was imposed on the parties by the Federal Service Impasses Panel (FSIP). The FLRA also held that while a union may challenge the head of the agency's action by filing an unfair labor practice charge, or by pursuing an expedited review of the negotiability issue, it may not arbitrate the issue through the negotiated grievance procedure in the contract. Because we find both aspects of the Authority's decision to be reasonable constructions of the Labor-Management Act and its policies, we affirm the Authority's decision.

I. BACKGROUND

In enacting the Labor-Management Act, Congress sought to provide federal civilian employees with some of the rights enjoyed by employees in the private sector. ¹ Specifically Congress found that statutory protection of employees' rights to form labor unions and bargain collectively was in the public interest. 5 U.S.C. Sec. 7101(a)(1). At the same time, Congress recognized that it could not merely transplant private employment statutes to the public employment context. Rather, it would have to "establish procedures which are designed to meet the special requirements and needs of the Government." 5 U.S.C. Sec. 7101(b). Thus, the Act strikes a balance between the need to strengthen employees' bargaining rights, and the need not to unduly interfere with government operations. ²

Notwithstanding the broad rights the new law conferred on federal employees to engage in collective bargaining, certain subjects were excluded from the scope of bargaining. See, e.g., 5 U.S.C. Secs. 7106(a) (management rights); 7117(a)(2) (agency regulation for which "compelling need" exists). To adjudicate "negotiability" disputes arising out of these provisions, Congress set up mechanisms by which a union can appeal an agency's assertion of nonnegotiability. See, e.g., Sec. 7117(c) (expedited review of negotiability issues); Sec. 7118 (unfair labor practice proceedings). Additionally, although strikes continued to be forbidden, Sec. 7116(b)(7), Congress established an Impasses Panel, whose job it is to suggest and if necessary, order terms of settlement between agencies and unions when they cannot agree. Sec. 7119.

In this case, we confront a potential conflict between an agency head's right to assert that a particular provision is not negotiable, and the Impasses Panel's right to impose terms on both parties. This case arose when the Union requested that the FLRA issue a Statement of General Policy on whether the head of an agency has the right to disapprove an agreement because of terms imposed by the Impasses Panel and, if so, whether a union can force the agency to arbitrate the negotiability issue in the parties' negotiated grievance procedure. The FLRA issued an Interpretation and Guidance on these issues holding that the head of the agency retains the power to review an agreement's legality even if some terms are imposed by the Impasses Panel, and that arbitration is not an available forum for reviewing the head of the agency's action. The Union now challenges those determinations.

A. Negotiability of Issues

The legislative history of the Labor-Management Act reveals that the scope of a government agency's duty to bargain was one of the most sensitive issues Congress had to resolve. ³ The statute provides that a government agency has a duty to "negotiate in good faith" about "conditions of employment." Secs. 7114(a)(4), 7102. But the statute defines "conditions of employment" as excluding matters "relating to the classification of any position" or "specifically provided for by federal statute." Sec. 7103(a)(14)(B)-(C); see also Sec. 7117(a)(1) (duty to bargain does not include matters inconsistent with any "Federal law or any government-wide rule or regulation"). The statute further lists a variety of management prerogatives, some of which the agency may not negotiate, Sec. 7106(a), and some of which the agency may, but is not required to, negotiate, Sec. 7106(b). Moreover, the duty to bargain does not extend to any matters inconsistent with an agency rule or regulation unless the Authority determines that there is no compelling need for the rule or regulation. Sec. 7117(a)(2).

When, in the course of negotiation, the agency asserts that a union proposal is nonnegotiable, the union has the right to expedited review by the Authority. Sec. 7117(c). After the union ⁴ files its petition for review, the head of the agency alleging nonnegotiability must file a statement withdrawing the allegation or setting forth the reasons supporting the allegation. Sec. 7117(c)(3)(A). The Authority then must "expedite proceedings ... to the extent practicable and shall issue ... a written decision on the allegation and specific reasons therefor at the earliest practicable date." Sec. 7117(c)(6); see generally 5 C.F.R. Secs. 2424.1-.10 (1983); H. Robinson, Negotiability in the Federal Sector 185-88 (1981).

Even after an agreement is executed between the agency and a union, issues of negotiability may still be raised. First, the head of the agency has 30 days from the time an agreement is signed within which to review the agreement ⁵ and ensure that it is "in accordance with the provisions of this chapter and any other applicable law, rule, or regulation." Sec. 7114(c)(2). When the head of an agency disapproves an agreement he is making essentially an assertion of nonnegotiability ⁶ which triggers the expedited review described above. See National Federation of Federal Employees, Local 1505 and Department of the Interior, National Park Service, Roosevelt-Vanderbilt National Historical Site, Hyde Park, New York, 7 F.L.R.A. 608 (1982); American Federation of Government Employees, AFL-CIO, Local 1052 and United States Army Engineer Center, Fort Belvoir, Virginia, 6 F.L.R.A. 460 (1981). At the end of the 30 days, the agreement automatically takes effect if the head of the agency has not taken action. Sec. 7114(c)(3).

Second even if the parties have never asserted nonnegotiability and have allowed the agreement to take effect, either party may raise illegality of the provision as a defense to a charge that it has violated the terms of the agreement. ⁷ If the defending party can show that the contract term in question is contrary to law--i.e., was nonnegotiable--then the term is declared void and unenforceable. See National Federation of Federal Employees, Local 1332 and Department of the Army Headquarters, U.S. Army Materiel Development and Readiness Command, 5 F.L.R.A. 599, 601 (1981).

B. The Impasses Panel

A second major aspect of the Labor-Management Act was its incorporation of The Federal Service Impasses Panel. ⁸ The Panel, which is made up of at least seven presidential appointees, is charged with the responsibility of settling bargaining impasses. Either party may request the Panel to conduct an inquiry into a bargaining impasse. If after the Panel makes initial recommendations to the parties they still cannot reach a settlement, "the Panel may--(i) hold hearings; (ii) administer oaths, take the testimony or deposition of any person under oath, and issue subpoenas ...; and (iii) take whatever action is necessary and not inconsistent with this chapter to resolve the impasse." Sec. 7119(c)(5)(B). See generally 5 C.F.R. Secs. 2471-.1-.12 (1983). When the Panel imposes a term on the parties it is "binding on such parties during the term of the agreement, unless the parties agree otherwise." Sec. 7119(c)(5)(C).

While the Impasses Panel has considerable power in settling disputes, it does not have the authority to pass judgments on assertions of nonnegotiability. The Act provides that "[t]he Authority shall ... resolves [sic] issues relating to the duty to bargain in good faith under section 7117(c) of this title." Sec. 7105(a)(2)(E). The Authority has held that Sec. 7105 and Sec. 7117(c), which provides for expedited review of nonnegotiability issues by the Authority, preclude the Impasses Panel from considering negotiability issues. See Interpretation and Guidance, 11 F.L.R.A. 626 (1983); see also House Committee on Post Office and Civil Service, 98th Cong., 2d Sess., Fifth Annual Report of the Federal Labor Relations Authority 96-97 (Comm. Print 1984) (panel declines jurisdiction when "threshold questions exist concerning a party's obligation to bargain over a proposal"). Thus, if any time prior to the Impasses Panel's decision, the agency raises a claim of nonnegotiability, the Impasses Panel cannot consider that issue, and the union must seek resolution of the issue before the Authority. Interpretation and Guidance, 11 F.L.R.A. at 629.

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