Department of Interior, Bureau of Land Management v. Federal Labor Relations Authority, 87-1838
| Decision Date | 09 May 1989 |
| Docket Number | No. 87-1838,87-1838 |
| Citation | 873 F.2d 1505 |
| Parties | 131 L.R.R.M. (BNA) 2341, 277 U.S.App.D.C. 248 DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Federation of Federal Employees, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Jeffrey Clair, Attorney, Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen. and William Kanter, Attorney, Dept. of Justice, Washington, D.C., were on the brief, for petitioner.
Peter R. Maier, Washington, D.C., also entered an appearance, for petitioner.
Pamela P. Johnson, Attorney, Federal Labor Relations Authority, with whom William E. Persina, Acting Sol., and James F. Blandford, Attorney, Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent.
Ruth E. Peters and Arthur A. Horowitz, Attorneys, Federal Labor Relations Authority, Washington, D.C., also entered appearances, for respondent.
H. Stephen Gordon, Gen. Counsel, Alice L. Bodley, Deputy General Counsel, and Anne L. Morgan, Attorney, National Federation of Federal Employees, Washington, D.C., were on the brief, for intervenor.
Bruce P. Heppen, Washington, D.C., also entered an appearance, for intervenor.
Before EDWARDS, WILLIAMS, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Pursuant to the Federal Service Labor-Management Relations Statute, as amended, 1 ("FSLMRS" or "Statute"), the Department of Interior ("Interior" or "agency") petitions for review of a decision of the Federal Labor Relations Authority ("FLRA" or "Authority") ordering negotiation over two provisions of a proposed collective bargaining agreement between the Bureau of Land Management ("Bureau") and the intervenor, National Federation of Federal Employees ("NFFE" or "union"). National Fed'n of Gov't Employees and Dep't of Interior, Bureau of Land Management, 29 F.L.R.A. 1491 (1987). The first provision would require the Bureau to delay an employee's suspension until at least ten days after the date of a decision letter ordering suspension. The second provision would require the Bureau to withhold termination of an employee with acknowledged medical or behavorial problems when the employee obtained professional assistance. We deny Interior's petition for review of the first provision and grant it as to the second.
NFFE submitted a proposed collective bargaining agreement with the Bureau to Interior for agency head approval pursuant to section 7114(c) of the FSLMRS. 2 Interior disapproved the agreement, contending that several of its provisions--including the two in dispute here--were outside its obligation to bargain under the FSLMRS. Interior concluded that the provisions instead fell within its exclusive management rights under section 7106(a) of the FSLMRS.
Section 7106 establishes exclusive managerial authority over certain matters, thereby reserving those from negotiation. The section in pertinent part reads:
Sec. 7106. Management rights
* * *
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;
* * *
* * *
(2) procedures which management officials of the agency will observe in exercising any authority under this section....
5 U.S.C. Sec. 7106 (1982) (emphasis added).
In the first of the two provisions before us, Provision 9, only one sentence is in dispute. The disputed language requires the Bureau to withhold implementing an employee suspension of fourteen days or fewer until at least ten days after a Bureau decision letter ordering the suspension. The provision reads in full:
When the Employer proposes a suspension of an employee for fourteen (14) days or less [pursuant to the Civil Service Reform Act of 1978], the employee shall be given written notice of the proposed suspension which shall:
(1) contain the specific reasons for the proposed suspension;
(2) inform the employee of the right to union representation;
(3) provide at least fifteen (15) calendar days in which the employee may answer the proposal orally and/or in writing;
(4) contain the name of the official to whom an answer may be directed; and
(5) inform the employee that any request for an extension of time in which to reply must be made to the deciding official prior to the expiration of the specified notice period.
The deciding official must not be the proposing official. A decision by the deciding official must be made as soon as practicable following the reply or the expiration of the notice period. The deciding official will give every reasonable consideration to the written and/or oral response of the employee in his/her decision to suspend or not suspend the employee. The effective date of a suspension under this article will not be less than ten (10) days from the date of the decision letter.
29 F.L.R.A. at 1522 (emphasis added). Interior disputes only the negotiability of the emphasized language, contending that the ten-day delay substantively affects the impact of a suspension, and thereby violates section 7106(a)(2)(A), which explicitly grants to an agency exclusive authority to "suspend" employees. In essence, Interior argues that delay may diminish the effectiveness of an immediate suspension and may require the Bureau to retain for ten days a disruptive employee who should immediately be suspended to minimize the adverse effects in the workplace of the employee's conduct. Interior also argues that the provision violates section 7106(a)(2)(B) which permits an agency "to assign work"; presumably, if an employee is suspended but the suspension is delayed for ten days, the agency may not effectively assign to the employee any project that might take more than ten days to complete.
The second disputed provision, Provision 16(c), prohibits the Bureau from terminating an employee with a medical or behavioral problem until the employee has the opportunity to seek professional help.
No employee acknowledging medical/behavioral problems shall be terminated without first having the opportunity to avail himself/herself of professional help....
See 29 F.L.R.A. at 1518. Interior disapproved this provision, arguing that it also violates section 7106(a)(2)(A), which exclusively grants to an agency the authority "to take ... disciplinary action" against employees.
Pursuant to section 7117(c) of the FSLMRS, 5 U.S.C. Sec. 7117(c), NFFE filed a negotiability appeal to the FLRA. In a two-to-one decision, the FLRA concluded, inter alia, that the two provisions were negotiable under its "acting at all" standard, and therefore ordered Interior to rescind its disapproval of the proposals. National Fed'n of Gov't Employees and Dep't of Interior, Bureau of Land Management, 29 F.L.R.A. 1491 (1987). 3
The FLRA first articulated the "acting at all" standard in United States Customs Service, Region VIII, 2 F.L.R.A. 25 (1979). Although originally upheld by this Court in Department of Defense v. FLRA, 659 F.2d 1140 (D.C.Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982), it has been criticized by several recent panels. 4 Nonetheless, Department of Defense v. FLRA remains the law of the Circuit.
The "acting at all" standard looks to the agency's ability to act under a given proposal of a labor organization. If the agency is not prohibited from "acting at all," then it is possible the proposal does not affront the agency's exclusive management rights. The standard requires a two-step determination. First, it must be determined whether the proposal is "purely procedural." National Fed'n of Fed. Employees, Local 1745 v. FLRA, 828 F.2d 834, 840 (D.C.Cir.1987); United States Customs Service v. FLRA, 854 F.2d 1414, 1418 (D.C.Cir.1988).
Based on this first finding, step two requires that one of two alternative routes be followed. If the proposal is "purely procedural," it is negotiable under section 7106(b)(2) "unless the proposal, if adopted, would prevent the agency from 'acting at all,' " National Fed'n of Fed. Employees, Local 1745, 828 F.2d at 840 (citation omitted). See also Customs Service, 854 F.2d at 1417-18. "If, however, the proposal 'stand[s] close to the uncertain border between procedure and substance, [then it] is deemed nonnegotiable if its adoption would directly interfere with management's reserved authority.' " Id. at 1418 (quoting National Fed'n of Fed. Employees, Local 1745, 828 F.2d at 840 (other citations omitted); see also Department of the Treasury, BATF v. FLRA, 857 F.2d 819, 821 (D.C.Cir.1988); American Fed'n of Gov't Employees v. FLRA, 819 F.2d 306, 308 (D.C.Cir.1987); National Fed'n of Fed. Employees, Local 1167 v. FLRA, 681 F.2d 886, 892 n. 8 (D.C.Cir.1982).
The FSLMRS requires that orders of the FLRA be reviewed in accordance with section 706 of the Administrative Procedure Act, 5 U.S.C. Sec. 7123(c). See also Department of the Treasury, BATF, 857 F.2d at 820-21. Because the FLRA is the agency charged by Congress to administer the FSLMRS, we may set aside a FLRA decision interpreting the FSLMRS only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). See Department of the Treasury, BATF, 857 F.2d at 821; EEOC v. FLRA, 744 F.2d 842, 847 (D.C.Cir.1984), cert. dismissed, 476 U.S. 19, 106 S.Ct. 1678, 90 L.Ed.2d 19 (1986).
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