Local 32, American Federation of Government Employees, AFL-CIO v. Federal Labor Relations Authority
| Decision Date | 11 October 1985 |
| Docket Number | P,AFL-CI,84-1578,Nos. 84-1250,s. 84-1250 |
| Citation | 249 U.S.App.D.C. 198,774 F.2d 498 |
| Parties | 120 L.R.R.M. (BNA) 2795, 249 U.S.App.D.C. 198 LOCAL 32, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,etitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Patrick Riley, Washington, D.C., with whom H. Stephen Gordon, was on brief for petitioner in 84-1578. Phillip R. Kete, Washington, D.C., was on brief for petitioner in 84-1250.
Steven H. Svartz, Deputy Sol., Federal Labor Relations Authority, Washington, D.C., with whom Ruth E. Peters, Sol., Federal Labor Relations Authority, and Pamela P. Johnson, Atty., Federal Labor Relations Authority, Washington, D.C., were on briefs, for respondent.
Before GINSBURG and BORK, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge McGOWAN.
In these consolidated cases, we review two orders entered by the Federal Labor Relations Authority ("FLRA" or "Authority") which held that proposals defining the competitive area for Reduction-in-Force ("RIF") implementation purposes were not within the government agencies' duty to bargain because the proposals would affect both bargaining unit and non-bargaining unit employees. Because the FLRA has held, in another relevant case, that proposals defining the competitive area for RIFs are mandatory subjects for bargaining, we vacate the Authority's orders and direct the Authority to assess candidly and reconcile the apparent inconsistencies in these cases.
During collective bargaining negotiations between Local 32, American Federation of Government Employees, AFL-CIO ("Union" or "Local 32") and the Office of Personnel Management ("Agency" or "OPM"), the Union proposed that the competitive area within the Agency for RIF purposes would be the Washington Metropolitan Area. 1 A "competitive area" is the part of an agency within which an employee who occupied an abolished position may compete with other employees to determine which of them will be retained in the agency. 2 A RIF occurs when an agency:
[R]eleases a competing employee from his/her competitive level by separation demotion, furlough for more than 30 days, or reassignment requiring displacement, when the release is required because of lack of work, shortage of funds, reorganization, reclassification due to change in duties, or the exercise of reemployment rights or restoration rights.
5 C.F.R. Sec. 351.201(a) (1983).
OPM, in response to this proposal, stated that it considered the provision to be outside the scope of mandatory bargaining. Appendix ("App."), No. 84-1250, at 8. Pursuant to the governing statute, 3 the Union sought review by the FLRA. App., No. 84-1250, at 7.
The Authority found the proposal non-negotiable, noting that the Union admitted that the proposed competitive area would encompass non-bargaining unit employees in addition to bargaining unit employees, American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management ("Local 32"), 14 FLRA 754, 754 (1984), and holding that the duty to bargain does not extend to matters concerning positions and employees outside the bargaining unit. Id.
The negotiability dispute in this case began with two proposals submitted by the National Federation of Federal Employees, Local 29 ("Union" or "Local 29") in its negotiations with the Department of the Army, U.S. Corps of Engineers, Kansas City District, Kansas City, Missouri ("Corps of Engineers" or "Agency"). App., No. 84-1578, at 1. Section 1 dealt with the selection process for reassignments, and stated:
When management (Employer) determines it is necessary to reassign employees due to a staffing imbalance, lack of work, shortage of funds, reorganization, or other reasons, the Employer will first ask for volunteers from among the qualified employees within that competitive area and level. If there are too many volunteers, the employees with the greatest retention standing will be given the reassignment. If there are too few or no volunteers, the employees with the least retention standing shall be given the reassignment.
Section 3 defined "competitive area" and "competitive level:"
Competitive Area: The geographic area that usually constitutes one area for employment purposes. It includes any population center (or two or more neighboring ones) and the surrounding localities in which people live and reasonably can be expected to travel back and forth daily in their usual employment.
Competitive Level: All positions within the activity in a competitive area which are sufficiently alike as far as qualification requirements/standards, duties, responsibilities, pay schedules, working conditions and conditions of employment.
This appeal deals with the proposal concerning competitive area only. 4
In refusing to bargain concerning the definition of competitive area, the Corps of Engineers stated that the proposal was not within its duty to bargain because it would allow Local 29 to "bargain for the entire activity, including employees it does not represent." App., No. 84-1578, at 5. The FLRA found this proposal not within the Corps of Engineers' duty to bargain. The Authority held that the proposal would apply in RIF situations, National Federation of Federal Employees, Local 29 and Department of the Army, U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri ("Local 29"), 16 FLRA 75, 77 (1984), and that the proposal would affect the working conditions of employees outside the bargaining unit. Id. at 78. The FLRA cited the Local 32 case for the proposition that such a proposal is not within an agency's duty to bargain. Local 29, 16 FLRA at 78.
Having decided that the proposal would apply in RIF situations, the FLRA also held that the proposal would conflict with government-wide regulations, in violation of 5 U.S.C. Sec. 7117(a)(1) (1982). Local 29, 16 FLRA at 78-79. According to the FLRA, Office of Personnel Management regulations, which require that each agency "establish competitive levels consisting of all positions in a competitive area ...," 5 C.F.R. Sec. 351.403(a) (1983), require uniform treatment of all employees within a designated competitive area during a RIF. Building on the Union suggestion that the proposal would only apply to bargaining unit positions, the FLRA concluded that the proposal was not negotiable because it conflicted with the OPM requirement of uniform treatment of employees in a RIF. Local 29, 16 FLRA at 78-79.
The Civil Service Reform Act ("Act" or "CSRA") provides that judicial review of FLRA decisions "shall be on the record in accordance with section 706 of this title." 5 U.S.C. Sec. 7123(c) (1982). Section 706 of title five (a portion of the Administrative Procedure Act) requires this court to 5 U.S.C. Sec. 706(2) (1982).
This standard requires that a court normally give "considerable deference" to the Authority's interpretation of its enabling legislation. Bureau of Alcohol, Tobacco and Firearms v. FLRA ("BATF"), 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983). In the context of FLRA negotiability decisions, this court has held that the FLRA's construction of its statute will be upheld if it is "reasonably defensible." Department of Defense v. FLRA, 691 F.2d 553, 558-59 (D.C.Cir.1982).
Despite this generally deferential standard, the Supreme Court has cautioned that "while reviewing courts should uphold reasonable and defensible constructions of an agency's enabling Act, they must not 'rubber-stamp ... administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.' " BATF, 464 U.S. at 97, 104 S.Ct. at 444 (citations omitted). Most important for the decision in this case, where the Authority has issued an order which is apparently inconsistent with its prior orders, the more recent order may not stand unless the Authority demonstrates convincingly that the two orders are, in fact, harmonious. Department of the Treasury v. FLRA, 707 F.2d 574, 581 n. 24 (D.C.Cir.1983). While we acknowledge that an agency is free to alter its past rulings and practices even in an adjudicatory setting, it is equally settled that an agency must provide a reasoned explanation for any failure to adhere to its own precedents. Airmark Corp. v. FAA, 758 F.2d 685, 691-92 (D.C.Cir.1985); Hatch v. FERC, 654 F.2d 825, 834 (D.C.Cir.1981). In particular, we have cautioned that "an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from tolerably terse to intolerably mute." Airmark Corp., 758 F.2d at 692 (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971)). It is to the problem of inconsistent rulings that we next turn.
In its Local 32 opinion, the FLRA recognized that it previously had found that proposals seeking to define competitive areas were within the duty to bargain in two types of cases. Local 32, 14 FLRA 754, 755. The first type of case, exemplified by National Treasury Employees Union and Department of Health and Human Services, Region IV, 11 FLRA 254 (1983) (Union Proposal 1), involved a situation where the applicability of the proposal to non-bargaining unit...
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