National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 81-2198

• Decision Date: 29 June 1982
• Docket Number: No. 81-2198,81-2198
• Citation: 220 U.S.App.D.C. 371,681 F.2d 886
• Parties: 110 L.R.R.M. (BNA) 3017, 220 U.S.App.D.C. 371 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 886

681 F.2d 886

110 L.R.R.M. (BNA) 3017, 220 U.S.App.D.C. 371

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 81-2198.

United States Court of Appeals District of Columbia Circuit.

Argued May 17, 1982.

Decided June 29, 1982.

Petition for Review of an Order of the Federal Labor Relations authority

Edwin Harvey, with whom Catherine Waelder, Washington, D. C., was on the brief, for petitioner.

William E. Persina, Atty., Federal Labor Relations Authority, with whom Mary Elizabeth Medaglia, Acting Sol., Federal Labor Relations Authority, Washington, D. C., was on the brief, for respondent.

Before MacKINNON, EDWARDS and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

In this case, we are asked to review a decision of the Federal Labor Relations Authority ("FLRA" or "Authority") holding that certain collective bargaining proposals were nonnegotiable under Title VII of the Civil Service Reform Act of 1978. In its petition for review, Local 1167 of the National Federation of Federal Employees ("Local 1167") challenges the decision of the FLRA with respect to two proposals that it made during collective bargaining negotiations with the Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida ("Homestead Air Force Base" or "the Agency"). In order to decide this case, we must consider the procedural requirements of negotiability appeals before the FLRA and the substantive law of negotiability in the federal sector. For the reasons set forth below, we affirm the Authority's decision, based on the record before it, that both Union bargaining proposals here at issue were nonnegotiable.

I. BACKGROUND

A. The Negotiations and the Bargaining Proposals

In early 1979, Local 1167 and Homestead Air Force Base began negotiations for a new collective bargaining agreement. Negotiations continued through the spring and summer. On August 14, 1979, Local 1167 received a letter from agency officials at Homestead Air Force Base asserting that six of the Union's bargaining proposals were not within the Agency's duty to bargain under the Civil Service Reform Act. The two proposals relevant to our review involve the "contracting out" of work performed by bargaining unit employees. The first of these proposals states:

Article 12.1

It shall be the policy of the Employer to consult openly and fully with the Labor Organization regarding any review of a function for contracting out within the unit. The Employer agrees that work shall not be contracted out when it can be demonstrated that work performed "in-house" is more economically and effectively performed. "Milestone Charts " related to review or feasibility studies for contracting out of work will be made available to the Labor Organization as actions are taken in accordance with such charts. ¹

The second contested proposal states:

Article 12.3

The Labor Organization shall be furnished dates and times of the pre-bid and bid-opening conferences and shall have the right to have two Labor Organization representatives present at the conferences. The contract will not be awarded for at least ten work days following the bid opening conference. ²

B. FLRA Proceedings

On August 27, 1979, Local 1167 appealed the Agency's claim of nonnegotiability to the FLRA, pursuant to section 7117(c)(2) of the Civil Service Reform Act, 5 U.S.C. § 7117(c)(2) (Supp. IV 1980). App. 1-11. The Authority granted Local 1167 an extension of time to comply with the filing requirements for negotiability appeals. App. 12-13; see 5 C.F.R. pts. 2424, 2429 (1982). Local 1167 complied in timely fashion. App. 14-16. Homestead Air Force Base then filed a timely statement explaining its allegations of nonnegotiability, as required by 5 U.S.C. § 7117(c)(3) (Supp. IV 1980). App. 17-33. Following its receipt of the Agency statement on November 21, 1979, Local 1167 had fifteen days to file a response. 5 U.S.C. § 7117(c)(4) (Supp. IV 1980). However, Local 1167 failed to meet this time limit when it responded on December 10, 1979, nineteen days after its receipt of the Homestead Air Force Base statement. App. 34-39.

The FLRA issued its Decision and Order on September 18, 1981. National Federation of Federal Employees, Local 1167 (Homestead Air Force Base), 6 F.L.R.A. No. 105 (1981). Because the response by Local 1167 to the Agency statement was untimely, the Authority refused to consider it in reaching its decision, id., slip op. at 1, and accepted the factual representations made by Homestead Air Force Base. With respect to the "Milestone Charts" mentioned in the proposed Article 12.1, the FLRA stated:

(T)he Agency has explained that such charts are internal management recommendations, developed from feasibility studies, used by management officials in determining whether to contract out.

Since this explanation is uncontroverted, it is adopted for purposes of this decision.

Id., slip op. at 4. With respect to the pre-bid and the bid-opening conferences mentioned in the proposed Article 12.3, the FLRA stated:

The Agency states that the pre-bid and bid-opening conferences are "wholly management related meetings at which the management aspects of the contracting out issue are either discussed or acted on, and which occur after the union has been afforded the opportunity to comment on the contracting out proposal." Since this explanation of the purpose and function of these conferences is uncontroverted, it is adopted for purposes of this decision.

Id., slip op. at 7. The FLRA also accepted the representation of Homestead Air Force Base that the proposed Article 12.3 was intended to permit the submission of views by Union officials in the pre-bid and bid-opening conferences. Id.

Based on the Agency explanations of the Milestone Charts, the bid conferences and the Union's intent with respect to Article 12.3, the FLRA ruled that the relevant portions of these two proposals were nonnegotiable. The Authority held that the last sentence of Article 12.1 was nonnegotiable because it would improperly involve Local 1167 "in management's internal deliberative process" and would "directly affect( ) the exercise of management's rights under section 7106(a)(2)(B) to make determinations with respect to contracting out." Id., slip op. at 5; see 5 U.S.C. § 7106(a)(2)(B) (Supp. IV 1980). The Authority also rejected the negotiability of the first sentence of Article 12.3, reasoning that Local 1167's involvement "in managerial deliberations and discussions ... would directly interfere with management's rights under the Statute to make determinations with respect to contracting out." National Federation of Federal Employees, Local 1167, 6 F.L.R.A. No. 105, slip op. at 7.

Local 1167 filed a timely petition for review of the FLRA Decision and Order, limiting its challenges to the italicized portions of the two proposals set forth above. This court has jurisdiction pursuant to 5 U.S.C. § 7123 (Supp. IV 1980).

II. ANALYSIS

Local 1167 makes both procedural and substantive attacks on the decision of the FLRA. We turn first to the Union claim that the FLRA unnecessarily limited its inquiry into the factual circumstances and agency rules relevant to the two proposals. We then consider whether the Authority's decision is consistent with the Civil Service Reform Act and relevant precedent. ³

A. The Processing of Negotiability Disputes Before the FLRA

Negotiability disputes necessarily interrupt the normal process of collective bargaining. An agency's allegation that a union proposal falls outside of the public employer's duty to bargain at the least prevents the union from negotiating over the proposed contract term. In addition, the parties may be unable to agree on other contract terms until the negotiability dispute is resolved and, as a consequence, a final collective bargaining agreement may be prevented entirely.

Congress apparently understood the severe impact of negotiability disputes on effective collective bargaining. It therefore enacted section 7117(c) of the Civil Service Reform Act, which establishes an appeals procedure for the resolution of negotiability disputes by the FLRA on an expedited basis. 5 U.S.C. § 7117(c) (Supp. IV 1980). ⁴ The section sets rigid time limits for filing a union appeal, an agency explanatory statement and a union response, see id. § 7117(c)(2)-(4), and the section directs the Authority to issue its decision "at the earliest practicable date," id. § 7117(c)(6). ⁵ The appeals procedure is thus intended to resolve negotiability disputes speedily, thereby minimizing the interruption of normal collective bargaining. ⁶

If Congress' purpose is to be achieved, the statutory time limits for filing union appeals, agency statements and union responses must be strictly observed. We therefore hold that the FLRA acted properly in the present case when it refused to consider the untimely response by Local 1167 to the statement of Homestead Air Force Base. Indeed, we do not understand Local 1167 to argue otherwise.

Local 1167 does argue, however, that despite its failure to file a timely response, the FLRA had an obligation to undertake a "substantive independent analysis of the content of the proposals to determine what effect, if any, they had on management rights." Brief for Petitioner at 24. Except to the extent that the FLRA is required to make an independent statutory interpretation of the Civil Service Reform Act, we cannot agree.

We hold that, in connection with negotiability disputes under section 7117(c), the parties must satisfy two principal responsibilities. First, the parties bear the burden of creating a factual record sufficient for the Authority to resolve the negotiability dispute. The FLRA has the statutory power to hold a hearing to aid in its decision, but such hearings are discretionary. 5 U.S.C. §...