Department of Treasury v. Federal Labor Relations Authority, 87-1084
| Decision Date | 29 January 1988 |
| Docket Number | No. 87-1084,87-1084 |
| Citation | 837 F.2d 1163 |
| Parties | 127 L.R.R.M. (BNA) 2507, 267 U.S.App.D.C. 160, 56 USLW 2468 DEPARTMENT OF the TREASURY, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Treasury Employees Union, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Thomas M. Bondy, Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., and William Kanter, Dept. of Justice, Washington, D.C., were on the brief, for petitioner.
William E. Persina, Deputy Sol., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., and Robert J. Englehart, Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent.
Timothy C. Welsh, with whom Lois G. Williams and Gregory O'Duden, Washington, D.C., were on the brief, for intervenor.
Before WALD, Chief Judge, ROBINSON and EDWARDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
The Bureau of Engraving and Printing and the National Treasury Employees Union ("NTEU") reached a tentative collective bargaining agreement in 1983. One provision of that agreement would have required management to consider for promotion members of the bargaining unit represented by NTEU before assessing the qualifications of other applicants or potential applicants for a vacant position. The provision would also have required management to wait ten days after receiving a list of qualified bargaining-unit employees before reviewing the credentials of other candidates for the position. The Department of the Treasury ("Treasury") refused to approve the provision when it reviewed the tentative contract, concluding that it violated the merit system principles and prohibitions set forth in 5 U.S.C Secs. 2301, 2302 (1982), and thus that it lay outside the agency's duty to bargain because it was inconsistent with federal law. See 5 U.S.C. Sec. 7117(a)(1) (1982). NTEU appealed Treasury's allegation that the provision was not negotiable to the Federal Labor Relations Authority ("FLRA").
The FLRA ruled, in part, that the provision did not offend merit system requirements. NTEU and Department of the Treasury, 24 F.L.R.A. 494, 496-97 (1986). 1 Accordingly, it found NTEU's proposal within the scope of Treasury's duty to bargain and ordered Treasury to rescind its disapproval. We agree with the FLRA's determination. NTEU's proposed provision does not contravene the merit system principles and prohibitions of 5 U.S.C. Secs. 2301 and 2302 or regulations issued thereunder, because it merely delimits the pool of candidates for a vacant position that management must consider initially. It does not restrict consideration to that group, nor does it compel management to employ criteria that are not job-related in choosing from among the initial group of candidates or an expanded set of applicants. We therefore deny Treasury's petition for review and enforce the FLRA's order.
Following negotiations in early 1983, NTEU and the Bureau of Engraving and Printing reached a tentative collective bargaining agreement that included the following provision:
Eligible candidates from within the NTEU, Chapter 201 bargaining unit will be considered for promotion pursuant to the terms of this Article and submitted to the selecting official for appointment. In the event a bargaining unit candidate is not selected for the position, non-bargaining unit candidates may not be submitted to the selecting official for consideration any sooner than ten calendar days following submission of the Best Qualified list of bargaining unit candidates. This procedure does not apply when filling GS-1 positions.
Pursuant to 5 U.S.C. Sec. 7114(c), the tentative agreement was submitted to Treasury for approval. On May 11, 1983, Treasury approved the agreement with the exception of the foregoing provision, alleging that it violated 5 U.S.C. Secs. 2301(b)(1) 2 and 2302(b)(6). 3 Memorandum from D.S. Burckman to Robert Ellenberger (May 11, 1983), reprinted in Appendix ("App.") 4. Because an agency's duty to bargain in good faith does not extend to proposals insofar as they are "inconsistent with any Federal law or any Government-wide rule or regulation," 5 U.S.C. Sec. 7117(a)(1), Treasury deemed NTEU's proposed provision nonnegotiable. NTEU appealed the determination to the FLRA.
The FLRA found the provision within the scope of the agency's duty to bargain. First, the FLRA ruled that the provision did not conflict with those portions of the Federal Personnel Manual ("FPM") issued by the Office of Personnel Management ("OPM") under 5 C.F.R. Sec. 335.103 (1987) to implement 5 U.S.C. Sec. 2301(c)(1). 4 The FPM sets forth two "merit promotion requirements" relevant to this dispute. Requirement 1 provides that "[a]ctions under a promotion plan--whether identification, qualification, evaluation, or selection of candidates--shall be made without regard to political, religious, or labor organization affiliation or nonaffiliation, marital status, race, color, sex, national origin, nondisqualifying handicap, or age, and shall be based solely on job-related criteria." FPM, ch. 335, subch. 1-4, Requirement 1. Requirement 4 states, in part, that "[s]election procedures will provide for management's right to select or not select from among a group of best qualified candidates." Id., Requirement 4.
In making its selection, however, management need not consider all applicants or potential candidates for a position. Management may restrict its search, in the first instance, to an "area of consideration," defined as "the area in which the agency makes an intensive search for eligible candidates in a specific promotion action." FPM, ch. 335, subch. 1-2(e). The choice of an area of consideration, however, is subject to three overlapping requirements. First, the minimum area of consideration is defined as "the area designated by the promotion plan in which the agency should reasonably expect to locate enough high quality candidates, as determined by the agency, to fill vacancies in the positions covered by the plan." Id. Second, Requirement 2 reiterates this condition by enjoining, in part: "Areas of consideration must be sufficiently broad to ensure the availability of high quality candidates, taking into account the nature and level of the positions covered." Id., subch. 1-4, Requirement 2. Third, the choice of an area of consideration must conform to Requirements 1 and 4, as set out above.
The FLRA found that the proposed contract provision did not run afoul of FPM requirements because it only specified the area of consideration on which the agency must initially focus when filling positions, and FPM regulations 24 F.L.R.A. at 496-97. The FLRA also noted that the provision did not refer to the criteria by which positions were to be filled, and therefore did not offend FPM Requirement 1 by preventing management from choosing candidates solely on the basis of job-related criteria. Id. at 497. Finally, the FLRA emphasized that the provision permitted management to consider applicants from outside the bargaining unit once it had evaluated the qualifications of those inside it, and that FLRA precedent had consistently found such proposals to be negotiable. Id. Hence, the FLRA concluded, the provision "is not inconsistent with either 5 U.S.C. Sec. 2301(b)(1) or with FPM Chapter 335." Id.
Second, the FLRA determined that the provision's requirement that management wait ten days before expanding its area of consideration beyond the compass of the bargaining unit did not constitute a prohibited personnel practice within the meaning of 5 U.S.C. Sec. 2302(b)(6), because it did not mandate that management choose an employee within the bargaining unit for the open position. Id.
Treasury seeks review, and the FLRA enforcement, of the FLRA's determination of negotiability and its order to rescind disapproval of the tentative contract provision. See 5 U.S.C. Sec. 7123.
Under the law of this circuit, when an agency interprets a statute other than that which it has been entrusted to administer, its interpretation is not entitled to deference. As we said recently in a case involving the FLRA's reading of the Back Pay Act:
Because the FLRA's refusal to award back pay did not rest on an interpretation of its organic statute, but rather on its reading of the Back Pay Act--a general statute--the FLRA's interpretation is entitled to respect before this court, but we are not bound by its construction of the statute even if reasonable. We are therefore called upon to engage in a de novo interpretation of the statute, guided, of course, by Congressional intent.
Professional Airways Sys. Specialists v. FLRA, 809 F.2d 855, 857 n. 6 (D.C.Cir.1987) (citations omitted); see also AFGE, Local 2782 v. FLRA, 803 F.2d 737, 740 n. 1 (D.C.Cir.1986) (); INS v. FLRA, 709 F.2d 724, 729 n. 21 (D.C.Cir.1983) ( ). The FLRA's decision in this case rests on its interpretation of 5 U.S.C. Secs. 2301 and 2302 and the FPM, none of which is a constituent of or issued pursuant to the statute the FLRA administers--the Federal Service Labor-Management Relations Act. We therefore accord the FLRA's construction of these statutory provisions and regulations no deference, although we shall, of course, follow its reasoning to the extent that we deem it sound. 5
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