U.S. Air Force v. Federal Labor Relations Authority, 80-3798

• Citation: 681 F.2d 466
• Decision Date: 23 June 1982
• Docket Number: No. 80-3798,80-3798
• Parties: 110 L.R.R.M. (BNA) 2809 UNITED STATES AIR FORCE; Air Force Logistics Command; Aerospace Guidance and Metrology Center, Newark, Ohio, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 466

681 F.2d 466

110 L.R.R.M. (BNA) 2809

UNITED STATES AIR FORCE; Air Force Logistics Command;

Aerospace Guidance and Metrology Center, Newark, Ohio, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 80-3798.

United States Court of Appeals, Sixth Circuit.

Argued May 20, 1982.

Decided June 23, 1982.

William Kanter, Katherine Gruenheck, Russell L. Caplan, Marc Richman, Appellate Staff, Civ. Div., U. S. Dept. of Justice, Washington, D. C., for petitioners.

Robert J. Freehling, Sol., Federal Labor Relations Authority, Mary Elizabeth Medaglia, Dawn D. Bennett-Alexander, Washington, D. C., for respondent.

Before KENNEDY and MARTIN, Circuit Judges, and GUY, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

Petitioner, the United States Air Force Logistics Command, Aerospace Guidance and Metrology Center of Newark, Ohio seeks review of the decision and order of the Federal Labor Relations Authority finding it to have committed an unfair labor practice in violation of sections 7116(a)(5) and (1) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq. (Supp. III 1979). In its order, the FLRA overruled the administrative law judge and held that petitioner had failed to give the union, the American Federation of Government Employees, adequate notice of a reorganization of its Directorate of Meteorology. The FLRA seeks enforcement of its order directing petitioner to cease and desist from this unfair labor practice. We decline to grant that enforcement.

The FLRA is an independent agency within the Executive Branch whose function is analogous to that of the National Labor Relations Board under the National Labor Relations Act, 29 U.S.C. § 151 (1976). In addition to responsibility with respect to unfair labor practices, Congress has entrusted to the FLRA, among other things the power to determine appropriate units for labor organization representation, conduct representation elections, decide issues relating to the statutory duty to bargain in good faith, and rule on exceptions to arbitrators' awards. 5 U.S.C. § 7105(a)(2)(A), (B), (E), and (H), respectively. The FLRA is further empowered to take such other legislative actions as are necessary and appropriate to administer effectively the statute's provisions. 5 U.S.C. § 7105(a)(2)(I).

As in the case of the National Labor Relations Act, our standard of review under the statute is narrow. The court in National Federation of Federal Employees v. FLRA, 652 F.2d 191 (D.C.Cir.1981) recently outlined the appropriate standard:

The (statute) provides that judicial review of FLRA decisions "shall be on the record in accordance with section 706 (of Title V)." 5 U.S.C. § 7123(c). Section 706, in turn, declares that agency action shall be set aside if found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law(.)" 5 U.S.C. § 706(2)(A). This section has been interpreted on countless occasions as requiring the court to give deference to an agency's interpretation of its enabling statute, especially "when the administrative practice at stake 'involves a contemporaneous construction of a statute by the (agency) charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.' " Power Reactor Development Co. v. Int'l Union of Electrical, Radio & Machine Workers, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961), quoting Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933). See also Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Kyle v. ICC, 609 F.2d 540, 542-43 (D.C.Cir.1979). We are, therefore, normally "bound by the 'principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.' " Miller v. Youakim, 440 U.S. 125, 145 n.25, 99 S.Ct. 957, 969, n.25, 59 L.Ed.2d 194 (1979), quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969).

Id. at 193

Here the "compelling indication" that something is wrong with the FLRA's decision revolves around an important contradiction between the facts of this case as the Authority has found them and its determination that petitioner violated the statute.

The facts here are simple. Petitioner held a meeting to announce and discuss its intention to reorganize the Directorate of Metrology. In attendance was Clem Price, the only union steward in this department. As steward, it was Price's responsibility to receive notice from the petitioner of changes in personnel policies, practices, and working conditions in the Directorate and to otherwise act as the union's point man within the department.

Immediately after the meeting, Price requested and was granted permission to review the entire reorganization plan. The plan accurately disclosed which positions were affected by the plan, identified the positions to be established in the reorganized version of the Directorate and specifically showed which positions would be abolished. As he indicated in his testimony at the administrative hearing, Price found no problem with the reorganization as proposed and so determined that it was not necessary to take any action on behalf of the union. Consequently, the plan was implemented without the union interposing a request to bargain regarding the plan. Such a request could have been predicated on sections 7106(b)(2) and (3) of the statute which provide that a labor union may negotiate over the procedures to be used by management in exercising management rights and the appropriate arrangements for employees adversely affected by the exercise of such rights.

Subsequently an employee who was adversely affected by the reorganization complained to Price, who, after reviewing the plan a second time, asked the union...