National Federation of Federal Employees, Local 615 v. Federal Labor Relations Authority

• Decision Date: 12 September 1986
• Docket Number: No. 85-1299,85-1299
• Parties: 123 L.R.R.M. (BNA) 2523, 255 U.S.App.D.C. 263 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 615, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 477

801 F.2d 477

123 L.R.R.M. (BNA) 2523, 255 U.S.App.D.C. 263

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 615, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 85-1299.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 19, 1986.

Decided Sept. 12, 1986.

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

Edwin H. Harvey, Philadelphia, Pa., with whom H. Stephen Gordon, Washington, D.C., was on brief, for petitioner.

Jill A. Griffin, Atty., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., and Steven H. Svartz, Deputy Sol., Federal Labor Relations Authority, Washington, D.C., were on brief, for respondent.

Before WALD, Chief Judge, and SCALIA and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

Circuit Judge STARR concurs in the judgment and in all but part III of the opinion.

SCALIA, Circuit Judge:

Petitioner National Federation of Federal Employees seeks review of a decision of the Federal Labor Relations Authority finding nonnegotiable, as an infringement of the management right to "take ... disciplinary action," 5 U.S.C. Sec. 7106(a)(2)(A) (1982), a union proposal requiring management to institute disciplinary investigations, if at all, within sixty days of knowledge of the infraction. We are asked to consider whether this proposal was properly found nonbargainable under the Authority's "acting at all" doctrine, under which a proposal framed as a negotiable procedure may nonetheless be found nonnegotiable if its implementation would prevent the agency from "acting at all" to exercise a reserved management right.

I

Under the Federal Service Labor-Management Relations Act, Title VII of the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111, 1191 (codified at 5 U.S.C. Secs. 7101-7135 (1982)), management officials of federal agencies are required to bargain with employees, 5 U.S.C. Sec. 7114(a)(4), over conditions of employment, see 5 U.S.C. Sec. 7103(a)(12), (14). Exempted from this requirement are certain enumerated substantive management rights which cannot themselves be lawful subjects of negotiation, 5 U.S.C. Sec. 7106(a); however, the procedures by which these rights may be exercised are expressly declared negotiable, 5 U.S.C. Sec. 7106(b)(2). In this case, in the course of collective bargaining negotiations, the National Federation of Federal Employees, Local 615, and the management of the Sequoia and Kings Canyon National Parks concluded an agreement that contained the following provision:

Investigation of the incident for which a disciplinary action may be taken, if at all, will normally be initiated within sixty (60) days after the incident in question, or within sixty (60) days after the Employer became aware of the incident.

As required by 5 U.S.C. Sec. 7114(c), the parties submitted the agreement to the Department of the Interior for review. The Department disapproved the provision in question as nonnegotiable, finding that it "violates management's right to ... take disciplinary action" reserved to it under 5 U.S.C. Sec. 7106(a)(2)(A). The Union appealed this determination to the Federal Labor Relations Authority ("FLRA"), which has authority under 5 U.S.C. Sec. 7117(c)(1) to make negotiability determinations. The FLRA upheld the Department's position, rejecting the Union's argument that the proposal simply represented a procedure which management would observe in exercising its rights under the statute, and was therefore negotiable. It found that the proposal would "in certain circumstances, prevent the Agency from acting at all with respect to its right to take disciplinary action against employees pursuant to section 7106(a)(2)(A) of the Statute." National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of Interior, 17 F.L.R.A. 318, 321 (1985). The FLRA reasoned that, while agency investigation of incidents is not itself an explicit legal or regulatory requirement for the imposition of discipline,

the standard of proof management must meet, i.e., a "preponderance of the evidence," to prevail upon appellate review of an adverse action, makes a thorough investigation the necessary precursor to disciplinary action in most instances.

Id. at 321 (footnote omitted). The Union appeals this decision under 5 U.S.C. Sec. 7123, which provides for judicial review of final decisions of the FLRA.

II

The core of the present dispute is the meaning and application of 5 U.S.C. Sec. 7106(b)(2), which adds to the specification of nonnegotiable management rights in Sec. 7106(a) the qualification that "[n]othing in this section shall preclude any agency and any labor organization from negotiating ... procedures which management officials of the agency will observe in exercising any authority under this section." In order to ensure that this procedural qualification does not swallow the substantive rule, the Authority has held that even where a proposal is framed in clearly procedural terms, it may nonetheless be found nonbargainable if its adoption would prevent an agency from "acting at all" with regard to a reserved management right. American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 F.L.R.A. 153, 155 (1979). This circuit upheld that formulation in Department of Defense v. FLRA, 659 F.2d 1140 (D.C.Cir.1981), cert. denied, 455 U.S. 945 (1982), opining that the "acting at all" standard was "a reasonable and natural construction of the statutory language, rendered by the agency given responsibility for administering the statute." 659 F.2d at 1153 (footnote omitted). That holding has since been followed by several other circuits. See Department of the Air Force v. FLRA, 717 F.2d 1314, 1315-16 (10th Cir.1983); Veterans Administration Medical Center v. FLRA, 675 F.2d 260, 261 (11th Cir.1982). It follows from the above case law that, if there is a reasonable basis for the FLRA's conclusion that the proposal before us would in certain circumstances establish an absolute bar to the exercise of the protected management right to discipline employees, we must affirm its finding of non-negotiability. See Department of Defense v. FLRA, 685 F.2d 641, 647-48 (D.C.Cir.1982).

The Union argues that even as to the agency's ability to investigate--much less as to its ability to discipline--the proposal does not establish an absolute cutoff. It asserts that the statement that investigations will "normally" begin within sixty days constitutes "no absolute requirement that the investigation begin prior to the expiration of that time," but merely expresses what "would typically occur," Brief for Petitioner at 9, establishing no more than a "target date," id. at 16, and leaving it to management "ultimately [to] decide whether more time was needed." Reply Brief for Petitioner at 4. Petitioner's very expression of this argument betrays its weakness. After adoption of the proposal, management will not be able to commence an investigation beyond the sixty-day cutoff unless it affirmatively decides (presumably with some basis in reason, see 5 U.S.C. Sec. 706(2)(A)) that "more time [is] needed" (emphasis added); if sixty days expire and there is no reason for delay, investigation is precluded. Stating what "normally" has been done by the agency in the past is purely descriptive; but stating (as this proposal does) what the agency "normally" will do in the future sets forth a norm, and the agency will have to justify its departure from that norm. While it is entirely true that the agency is not prevented from "investigating at all" before the sixty days have expired; or even after the sixty days have expired where there is some reason for the delay; it is prevented from "investigating at all" after sixty days where it had no particular reason (as it currently need not have) for waiting that long.

To establish that the proposal prevents the agency from "investigating at all" (in at least some cases) is not quite to conclude our inquiry. The enumerated management rights protected by the Act include the rights to "suspend, remove, reduce in grade or pay, or take other disciplinary action," 5 U.S.C. Sec. 7106(a)(2)(A), but not the right to investigate. And as the Union correctly asserts, the proposal concerns only the initiation of investigative actions and "does not purport to address discipline," Brief for Petitioner at 9. Whether or not an investigation is initiated within sixty days, the agency remains free to institute disciplinary action.

As the FLRA has "consistently held," however, the enumerated management rights "include more than merely the right to decide to take the final actions specified." National Federation of Federal Employees, Local 108 and U.S. Department of Agriculture, Farmers Home Administration, 16 F.L.R.A. 807, 808 (1984) ("NFFE and USDA"); American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 F.L.R.A. 640, 643 (1985) ("AFGE and Department of the Treasury"). We agree with the Authority that the right to discipline includes the right to investigate whether disciplinary action is justified. Or, to put the same point differently, the elimination of investigative power would have the "effect of eliminating management authority" to discipline, which practical impact we have viewed as sufficient to invoke the "acting at all" doctrine. Department of Defense v. FLRA, 659 F.2d at 1153 (emphasis added).

The Union asserts that since the agency can take disciplinary action without investigation, the inability to investigate goes not to whether the agency can act but only to whether its action will be upheld (as sustained by a "preponderance of the evidence," 5 U.S.C. Sec. 7701(c)(1)(B)) on appeal. Reply Brief for Petitioner at 5. There...