National Treasury Employees Union v. Federal Labor Relations Authority

• Decision Date: 14 August 1990
• Docket Number: No. 87-1165,87-1165
• Citation: 910 F.2d 964
• Parties: 135 L.R.R.M. (BNA) 2118, 285 U.S.App.D.C. 464, 59 USLW 2132 NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 964

910 F.2d 964

135 L.R.R.M. (BNA) 2118, 285 U.S.App.D.C.

464, 59 USLW 2132

NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 87-1165.

United States Court of Appeals,

District of Columbia Circuit.

Argued En Banc April 25, 1990.

Decided Aug. 14, 1990.

Gregory O'Duden, with whom Elaine Kaplan and Kerry L. Adams were on the brief, for petitioner. Michael Wolf and Cary P. Sklar also entered appearances, for petitioner.

Arthur A. Horowitz, Atty., Federal Labor Relations Authority, with whom William E. Persina and Denise Morelli, Attorneys, Federal Labor Relations Authority, were on the brief, for respondent. Ruth E. Peters, Atty., Federal Labor Relations Authority, also entered an appearance, for respondent.

Jeffrey Clair, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and William Kanter, Atty., Dept. of Justice, were on the brief, for amicus curiae, urging affirmance. Gregory C. Sisk also entered an appearance for amicus curiae.

Before WALD, Chief Judge, MIKVA, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, THOMAS, HENDERSON, ^* and RANDOLPH,* Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Dissenting Opinion filed by Circuit Judge MIKVA.

SILBERMAN, Circuit Judge:

The National Treasury Employees Union Chapter 222 petitions for review of an order issued by the Federal Labor Relations Authority ("FLRA"), claiming that the order, directing the IRS to bargain with the union, is legally inadequate. We deny the petition.

I.

The Houston District Office of the IRS in 1983 relocated two groups of its employees to a new suburban location. One group of nearly 400 employees came from the downtown Federal Building, and another 350 employees moved from the IRS's Westpark office. Although the IRS did not provide parking for its employees at either of the two old locations, the downtown location was accessible by public transportation (commercial parking was also available), and the employees previously assigned to Westpark typically had enjoyed free street parking there.

The agency notified the union of the pending move in September of 1982, and the parties thereafter negotiated several matters relating to the move, ¹ reaching agreement by December on all issues except parking facilities for employees at the new location. Although the IRS was not altogether forthcoming with information about the parking facilities, the union eventually learned that the General Services Administration had leased 650 parking places at the new location for employee and visitor use; the union then sought to limit the number of spaces reserved for management. The union also proposed a cap on the parking charges that employees would have to pay--apparently asking the agency to, at least in part, subsidize employee parking.

The IRS resisted the union's proposals; although the agency took a number of different positions, it ultimately asserted that it had no obligation to negotiate over the union's proposals because the IRS could not legally subsidize parking under the Travel Expense Act, see 5 U.S.C.A. Secs. 5701-5752 (West 1980 & Supp.1990), and because the union's proposal would interfere with the agency's ability to determine its own budget, see 5 U.S.C. Sec. 7106(a)(1). The union filed an unfair labor practice charge, and the ALJ and the Authority on appeal held that the agency had not bargained in good faith, in violation of 5 U.S.C. Secs. 7116(a)(1) and (5), and ordered the agency to do so. See United States Dep't of the Treasury, Internal Revenue Serv. and United States Dep't of the Treasury, Internal Revenue Serv. Houston Dist. and Nat'l Treasury Employees Union and Nat'l Treasury Employees Union, Chapter 222, 25 F.L.R.A. 843 (1987). The FLRA rejected the IRS's nonnegotiability defense because it thought the union's proposals were directed primarily at the distribution of the assignment of leased parking places between management and bargaining unit employees. The Authority, moreover, viewed the union's proposals for a cap on parking charges as flexible; the union had proposed a parking subsidy only to the extent the agency could provide it legally.

The IRS has not appealed the Authority's determination. The union has petitioned for review, however, because the Authority denied the union's requested remedy, a retroactive bargaining order ("RBO"). In other words, the union had asked that the Authority direct the IRS to bargain with the union over the parking proposals with the condition that whatever agreement that ultimately emerged be automatically applied retroactively to the date of the unfair labor practice. The Authority declined to order such a remedy in this case, relying on the criteria for issuing RBO's it set forth in Environmental Protection Agency and American Federation of Government Employees, 21 F.L.R.A. 786 (1986) ("EPA and AFGE "). In that earlier case, the FLRA announced that in determining whether to issue such an order it would weigh the effect on agency operations, whether the agency's refusal to bargain came in the face of a prior Authority decision that the issue was negotiable, and whether or not the agency refused to comply with impasse resolution procedures. The Authority further noted that if the parties bargained to an impasse on the issue, the Federal Service Impasse Panel, which is empowered in that event to fashion an agreement, could then make the parking provisions retroactive. See id. at 788-91.

A divided panel of this court granted the union's petition for review, see National Treasury Employees Union v. Federal Labor Relations Auth., 856 F.2d 293, 296 (D.C.Cir.1988), but the full court vacated the panel decision on November 23, 1988 and granted rehearing en banc, see 856 F.2d at 308 (D.C.Cir.1988).

II.

When a federal court of appeals reviews an administrative agency's choice of remedies to correct a violation of a law the agency is charged with enforcing, the scope of judicial review is particularly narrow. Almost fifty years ago the Supreme Court, in reviewing a National Labor Relations Board remedial choice, explained why:

Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board's discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941). Nevertheless, petitioner asserts that Congress did not intend to grant the FLRA discretion to choose a remedy to correct an agency's unfair labor practice that would fall short of making employees "whole," and it contends that the only way that the employees can be made "whole" here is by use of an RBO.

The language of the Federal Service Labor-Management Relations Act, 5 U.S.C.A. Secs. 7101-7135 (West 1980 & Supp.1990), appears to us, however, to exude indications of a broad congressional delegation of discretion to the FLRA to fashion appropriate remedies for an unfair labor practice. Section 7105(g)(3) states that the Authority may "take any remedial action it [the FLRA] considers appropriate to carry out the policies" of the federal labor statute. 5 U.S.C. Sec. 7105(g)(3) (emphasis added). Congress then broadly listed in section 7118(a)(7) the measures the FLRA could implement to correct violations of the statute:

(a)(7) If the Authority ... determines ... that the agency or labor organization named in the complaint has engaged ... in an unfair labor practice, then [the Authority] ... shall issue ... an order--

(A) to cease and desist from any such unfair labor practice in which the agency or labor organization is engaged;

(B) requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect;

(C) requiring reinstatement of an employee with backpay in accordance with section 5596 of this title; or

(D) including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action as will carry out the purpose of this chapter.

5 U.S.C. Sec. 7118(a)(7) (emphasis added). Subparagraph (D) underscores Congress' intent, that the FLRA be granted discretion to choose what it deems the appropriate responses to an unfair labor practice. ²

Petitioner's textual argument, as we understand it, is that the words "shall issue ... an order" in section 7118(a)(7) oblige the Authority, in the case of an agency's refusal to bargain, to issue the order described in subparagraph (B)--one "requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect." (emphasis added). That argument assumes that subparagraph (B) is the only provision that may be employed to remedy an agency's refusal to bargain, which seems a dubious proposition given the character of the statute's remedial prescriptions. Under the National Labor Relations Act, for instance, an employer's refusal to bargain is remedied under a provision similar to subsection (A), the general cease and desist authority. See 29 U.S.C. Sec. 160(c). Subparagraph (B) apparently was designed not to circumscribe the FLRA's remedial discretion, but to provide specific authority, not available to the NLRB, actually to fashion and order the terms of a collective bargaining agreement. ³

But even were petitioner's assumption correct--that Congress intended subparagraph (B) of section 7118(a)(7) to serve as the FLRA's authority to remedy refusals to bargain--petitioner's argument ignores subparagraph (D), which explicitly empowers the FLRA to include in an order "any combination of actions described in subparagraphs (A) through (C) ... or...