Association of Admin. Law Judges v. F.L.R.A.

• Decision Date: 28 January 2005
• Docket Number: No. 04-1129.,04-1129.
• Citation: 397 F.3d 957
• Parties: ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, et al., Petitioners v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

397 F.3d 957

ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, et al., Petitioners v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent

No. 04-1129.

United States Court of Appeals, District of Columbia Circuit.

Argued December 9, 2004.

Decided January 28, 2005.

On Petition for Review of a Decision and Order of the Federal Labor Relations Authority.

Sally M. Tedrow argued the cause for petitioners. With her on the briefs was James B. Coppess.

Mark D. Roth, Judith D. Galat, Gregory O'Duden, Barbara A. Atkin, and Timothy B. Hannapel were on the brief of amici curiae American Federation of Government Employees, et al., in support of petitioner.

James F. Blandford, Attorney, Federal Labor Relations Authority, argued the cause for respondent. With him on the brief were David M. Smith, Solicitor, and William R. Tobey, Deputy Solicitor.

Before: GINSBURG, Chief Judge, and GARLAND, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge.

The Association of Administrative Law Judges (the Union) petitions for review of a decision by the Federal Labor Relations Authority holding that an employing agency of the United States Government need not bargain over a de minimis change in "conditions of employment," 5 U.S.C. § 7102(2). The Union argues this newly announced exception to the duty to bargain is both contrary to the terms of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq., and unreasonable in light of the Congress's purpose in enacting it.

The issue, which we resolve with deference to the Authority because it is charged with administration of the Statute, is whether "the Congress has taken a position so rigid that it will not admit of a de minimis exemption." Envtl. Def. Fund, Inc. v. EPA, 82 F.3d 451, 466 (D.C.Cir.1996). In this regard, as the Authority points out, the Congress has specifically directed that "[t]he provisions of [the Statute] should be interpreted in a manner consistent with the requirement of an effective and efficient Government." 5 U.S.C. § 7101. In light of this pragmatic direction, we hold the Authority's interpretation of the Statute not to require bargaining over trivia is neither contrary to the text nor unreasonable in light of its purpose. Because the Authority here applied the de minimis exception to a truly insignificant change in the ALJs' conditions of employment, we deny the Union's petition for review.

I. Background

In October 1999, each of the six ALJs employed in the Social Security Administration's Office of Hearings and Appeals in Charleston, South Carolina was assigned a reserved parking space. One year later the agency, refusing the Union's request to bargain over the matter, unilaterally reassigned four of those spaces, leaving only two reserved spaces for the six ALJs to share. All six ALJs were still allowed free, unreserved parking in the same garage, and space was always available.

The Union filed an unfair labor practice charge with the Authority, and the General Counsel issued a complaint alleging the SSA had violated the Statute by refusing to bargain over a substantively negotiable change in a condition of employment. 5 U.S.C. § 7116(a)(1) & (5). After a hearing, an ALJ for the Authority upheld the complaint and ordered the agency to reinstate the ALJs' parking privileges.

In so doing, the ALJ followed longstanding practice with respect to a change in working conditions that was "substantively negotiable" — meaning not within one of the "management rights" enumerated in § 7106: "[T]he extent of the impact of the change on unit employees has not been a factor or element in the analysis of whether an agency is obligated to bargain." On the other hand, an agency was not (and is not) obligated to bargain over the "impact and implementation" of a change it could make as a matter of management right unless the change "has more than a de minimis effect on the unit employees' conditions of employment." Here the ALJ volunteered that "if [SSA] were only obligated to bargain [over] impact and implementation, there might be a grave doubt that the impact was more than de minimis."

The SSA filed exceptions to the ALJ's decision, arguing "the Authority should apply the de minimis doctrine that has been used for impact and implementation bargaining to changes that are substantively negotiable." Recognizing that "the issue raised by the Agency ... [was] likely to be of concern to the federal sector labor-management relations community in general," the Authority published in the Federal Register a call for amicus briefs addressed to the following questions:

What standard should the Authority apply in determining an agency's statutory obligation to bargain when an agency institutes changes in conditions of employment that are substantively negotiable? Why? Should the Authority eliminate the distinction between substantively negotiable changes, where the de minimis standard has not been applied, and changes that are not substantively negotiable, where the de minimis standard has been applied? Why?

Briefs were filed by three unions representing employees of the Government and by the Departments of Defense and of Labor.

In the resulting order, now under review, the Authority reversed the ALJ and repudiated its prior practice, noting that it had never "explained why the extent of the impact of the change is not relevant in determining whether the agency has an obligation to bargain." Soc. Sec. Admin., Office of Hearings & Appeals, Charleston, S.C., 59 F.L.R.A. No. 118, 2004 WL 349896, Slip at 19 (Feb. 19, 2004) (hereinafter Charleston OHA). This being the "first instance in which a party ha[d] explicitly requested the Authority ... to apply the same standard to both situations," the Authority could find no reason to limit its recognition of the de minimis exception to "impact and implementation" bargaining, as to which it had long ago explained:

[T]he Authority must take care that its adjudicative processes not be unnecessarily burdened with cases that do not serve to bring meaning and purpose to the Federal labor-management relations program. While we seek to ensure that the rights of agencies, unions, and employees under the Statute are protected in situations involving changes in conditions of employment, we must also seek to discharge our responsibilities in a fashion that promotes meaningful bilateral negotiations. Interpreting the Statute to require bargaining over every single management action, no matter how slight the impact of that action, does not serve those aims.

Dep't of Health and Human Services, SSA, 24 F.L.R.A. 403, 406, 1986 WL 54539 (1986).

Therefore, "in the absence of any explicit indication in the Statute," Charleston OHA, Slip at 15, and in light of its duty to interpret the Statute "in a manner consistent with the requirement of an effective and efficient Government," 5 U.S.C. § 7101(b), the Authority concluded the Statute does not require an agency to bargain over a de minimis change in conditions of employment. In so holding, the Authority noted that a similar standard prevailed both under Executive Order 11491, which had governed labor-management relations in the federal Government prior to enactment of the Statute in 1978, see Dep't of Defense, Air Nat'l Guard, Tex. Air Nat'l Guard, Camp Mabry, Austin, Tex., 6 A/SLMR 591 No. 738 (1976) (obligation to bargain "encompasses those matters which materially affect, and have a substantial impact on, personnel policies, practices, and general working conditions"), and under the National Labor Relations Act, 29 U.S.C. § 151 et seq., which governs labor-management relations in the private sector, see Peerless Food Prods., Inc. v. Amalgamated Meat Cutters Union 553, 236 N.L.R.B. 161, 1978 WL 7691 (1978) (obligation to bargain where unilateral change "amount[s] to a material, substantial, and significant one").

Applying the de minimis standard to this case, the Authority concluded the SSA's reduction by four in the number of reserved parking spaces assigned to the six ALJs was indeed a de minimis change in the conditions of their employment. Accordingly, it dismissed the complaint and the Union petitioned for review.^*

II. Analysis

We review the Authority's interpretation of the Statute under the two-step framework of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We first consider whether the "Congress has spoken directly" to the question whether an agency must bargain over changes in conditions of employment with a merely de minimis effect upon unit employees. Id. at 842-43 & n. 9, 104 S.Ct. 2778 (1984). If the court, "employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Id. at 843 n. 9, 104 S.Ct. 2778.

The Statute grants "[e]ach employee ... the right ... to engage in collective bargaining with respect to conditions of employment," 5 U.S.C. § 7102(2), where "`conditions of employment' means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions." 5 U.S.C. § 7103(a)(14). Section 7106 enumerates several "management rights" that function as exceptions to the duty to bargain. Here the parties agree that reserved parking was a "condition of employment" for the ALJs and that the SSA's reduction in the number of spaces assigned to them was not a matter of "management right."

At Chevron step one the parties each advance a "traditional tool of statutory construction." The Union argues that, because the Statute enumerates several exceptions to the duty to bargain but nowhere mentions a de minimis exception, the court should infer that the Congress did not intend that there be a de minimis exception; expressio unius est exclusio alterius. The...