Department of Defense Dependents Schools v. Federal Labor Relations Authority

• Decision Date: 06 February 1989
• Docket Number: No. 87-1733,87-1733
• Citation: 274 U.S.App.D.C. 299,863 F.2d 988
• Parties: 130 L.R.R.M. (BNA) 2087, 274 U.S.App.D.C. 299, 50 Ed. Law Rep. 957 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. , et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 988

863 F.2d 988

130 L.R.R.M. (BNA) 2087, 274 U.S.App.D.C. 299,

50 Ed. Law Rep. 957

DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 87-1733, et al.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 18, 1988.

Decided Dec. 20, 1988.

Rehearing En Banc Granted Feb. 6, 1989.

Jacob M. Lewis, Attorney, Dept. of Justice with whom John R. Bolton, Asst. Atty. Gen., William Kanter, Attorney, Dept. of Justice were on the brief, for petitioner.

Jill A. Griffin, Attorney, Federal Labor Relations Authority with whom William E. Persina, Acting Solicitor, Federal Labor Relations Authority was on the brief, for respondent.

Richard J. Hirn with whom Ronald A. Austin was on the brief, for intervenor.

Before ROBINSON, STARR and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

These petitions for review raise issues concerning the negotiability of proposals with respect to the compensation of teachers employed overseas by the Department of Defense Dependents Schools. For the reasons that follow, we conclude, in conformity with a recent decision by our colleagues in the Third Circuit, that wages and other matters pertaining to compensation of federal employees fall outside the duty to bargain under the Federal Labor Relations Statute, 5 U.S.C. Secs. 7101-35 (1982 & Supp. IV 1986) ("Statute").

I

As its name suggests, the Department of Defense Dependents Schools (DODDS) administers an elaborate school system for minor dependents of U.S. military and civilian personnel stationed overseas. The Overseas Education Association (OEA) is the exclusive representative of DODDS teachers in three of the system's regions across the globe.

There are four consolidated cases before us. Each, however, presents a common issue of law which emerged from OEA's advancement at the bargaining table of ten proposals relating to teachers' compensation. For example, OEA proposed that DODDS pay its overseas teachers time and a half for time spent outside the regular day carrying on the duties of Student Activity Fund Councils. In like manner, another proposal called for DODDS to pay time and a half for time spent making up lost instructional time that exceeds 183 instructional days, along with double time for work at times such as weekends and holidays.

The details of the ten proposals need not detain us. The relevant point for our purposes is that DODDS responded by contesting the negotiability of all ten of the proposals. ¹ The question thus went before the Federal Labor Relations Authority for resolution pursuant to section 7117(c) of the Statute. In four separate decisions handed down in September and October 1987, a divided FLRA concluded that each of the proposals was in fact negotiable. The Authority emphasized that, under this court's decision in March v. United States, 506 F.2d 1306 (D.C.Cir.1974), DODDS was at liberty to negotiate over wages to the extent that the proposals did not relate to "basic compensation" under the Overseas Teachers Pay and Personnel Practices Act, 20 U.S.C. Secs. 901 et seq. (1982). In the cases at hand, the Authority determined that DODDS enjoyed discretion in fixing the terms of compensation; the matters were not, in short, dictated by law. Where those two features were present, namely agency discretion and non-establishment by law, the matters were deemed to fall within the agency's duty to bargain under the Statute. See 29 FLRA No. 61, at 106; Joint Appendix (J.A.) at 191.

FLRA Chairman Calhoun dissented in each of the cases. The Chairman relied on his previous dissenting position in American Federation of Government Employees and Department of the Air Force, Eglin Air Force Base, 24 FLRA 377 (1986), in which he argued that, while the wages and fringe benefits of most federal employees are established by law, the forty-odd federal pay systems which are not entirely fixed by statute are nonetheless outside the scope of the duty to bargain.

These petitions for review (one of which was filed in the Fourth Circuit and transferred to this court) followed, and the cases were consolidated. The Authority has cross-applied for enforcement.

II

As the parties recognize, our review is governed by the familiar principles rearticulated in Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) and its progeny. Thus, in assessing whether wages are negotiable under the Statute, our first task is to attempt to determine Congressional intent using "traditional tools of statutory construction." Id. at 842-43 & n. 9, 104 S.Ct. at 2781-82 & n. 9. If, under this analysis, we conclude that Congress' intent is clear, then we need not reach the Chevron Step Two question of whether the agency's interpretation of the statute is a permissible one. See id. at 842-43, 104 S.Ct. at 2781-82.

A

As always, our inquiry into legislative intent focuses primarily on the language of the statute. See Board of Governors of Federal Reserve System v. Dimension Financial Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986). The language Congress chose to employ is more than a mere launching pad for a wide-ranging interpretive enterprise by lawyers and judges. In a memorable dissent over a generation ago, Learned Hand reminded bench and bar that, although statutory interpretation represents a sensitive, judgmental undertaking, the words of the statute are "no doubt the most important single factor in ascertaining [the legislature's] intent." Commissioner v. Ickelheimer, 132 F.2d 660, 662 (2nd Cir.1943); see also Georgetown University Hospital, et al. v. Otis R. Bowen, Sec'y of Health and Human Services, 862 F.2d 323, 330 (1988) (Mikva, J., concurring) (plain meaning of the statute renders further investigations unnecessary). It is, in short, the statute that constitutes law. Here, the Federal Labor Relations Statute extends collective bargaining in the federal workplace only to "conditions of employment." 5 U.S.C. Sec. 7102(2). "Conditions of employment," in turn, are defined as "personnel policies, practices, and matters ... affecting working conditions...." 5 U.S.C. Sec. 7103(a)(14). Thus, the central question is whether Congress intended "wages and fringe benefits" to be included within this definition.

A straightforward, natural reading of the statutory language fails to yield the FLRA's interpretation, namely that "working conditions" should be read to include "wages." Far from it. The term "working conditions" ordinarily calls to mind the day-to-day circumstances under which an employee performs his or her job. See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 221-22, 85 S.Ct. 398, 408-09, 13 L.Ed.2d 233 (1964) (Stewart, J., concurring) (although "[t]he phrase 'conditions of employment' is no doubt susceptible of diverse interpretations[,]" ... "[i]n common parlance, the conditions of a person's employment are most obviously the various physical dimensions of his working environment"). Thus, for example, this court has upheld the FLRA's conclusion that matters relating to job safety and office environment are "central" to an employee's working conditions. See Library of Congress v. F.L.R.A., 699 F.2d 1280, 1286 (D.C.Cir.1983). However, it is entirely unclear how an employee's compensation can be seen as "affecting" such working conditions. If there is any relationship between wages and working conditions, it is that the conditions of employment sometimes affect the wages received--not vice versa. ²

However, we need not end the interpretive inquiry with a focus on the more "natural" reading of the operative language. Equally strong indications of Congressional intent can be discerned by reference to other collective bargaining regimes in which Congress has recognized that "wages" and "working conditions" are by no means the same (or, more precisely, that the former is not a subset of the latter). Thus, for example, the National Labor Relations Act authorizes collective bargaining over "wages, hours, and other terms and conditions of employment." 29 U.S.C. 158(d) (1982); see also Dep't of Navy, Military Sealift Com. v. F.L.R.A., 836 F.2d 1409, 1416 n. 14 (3rd Cir.1988) (finding Congress' use of only "conditions of employment" in the Statute to imply "a narrower range of bargainable matters under the Labor-Management Statute than under the NLRA"). ³ Congress recognized the same distinction in the Overseas Pay Act, when it authorized the Secretary of Defense to promulgate regulations concerning "the payment of compensation" to overseas teachers in one section of the statute, while granting the same authority as to "the conditions of employment" in another. Compare 20 U.S.C. Sec. 902(a)(4) (1982) with 20 U.S.C. Sec. 902(a)(6) (1982). Similar treatment of "wages" and "working conditions" appears in other pay systems ⁴ and other types of statutes. ⁵ Indeed, the FLRA has pointed us to no collective bargaining scheme, or any other type of statute, in which "working conditions" has been construed to include wages. ⁶

Congress had occasion to reaffirm this familiar, common-sense distinction in the 1978 Civil Service Reform Act (CSRA), which of course contains the Federal Labor Relations Statute itself. In continuing the collective bargaining rights of "prevailing rate" employees who had previously engaged in such bargaining, Congress in section 704 of the CSRA distinguishes between bargaining over "terms and conditions of employment and other employment benefits" and "pay and pay practices." The Prevailing Rate Act, Pub.L. No. 95-454, Sec. 704(a), (b), 92 Stat. 1111, 1218 (1978) (reprinted at 5 U.S.C. Sec. 5343 note (1982)). The legislative history of section 704 provides further support for this distinction. See H.R.Cong.Rep. 95-1717, 95th Cong., 2d Sess. 159 (1978), U.S.Code Cong. & Admin.News 1978, pp. 2723, 2893 (explaining that...