U.S. Army Engineer Center v. Federal Labor Relations Authority
| Decision Date | 23 May 1985 |
| Docket Number | L,AFL-CI,No. 84-1327,84-1327 |
| Citation | 762 F.2d 409 |
| Parties | 119 L.R.R.M. (BNA) 2854 U.S. ARMY ENGINEER CENTER and Fort Belvoir and U.S. Department of the Army, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. The American Federation of Government Employees,ocal 1052, Intervenor/R. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Deborah Ruth Kant, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., William Kanter, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., on brief), for petitioners.
Robert J. Englehart, Washington, D.C. (Ruth E. Peters, Sol., Steven H. Svartz, Deputy Sol., Washington, D.C., on brief), for respondent.
Joseph Goldberg, Washington, D.C. (Mark D. Roth, Washington, D.C., on brief), for intervenor.
Before WIDENER and WILKINSON, Circuit Judges, and MacKENZIE, Chief United States District Judge for the Eastern District of Virginia, sitting by designation.
This case concerns the procedures by which the Federal Labor Relations Authority may determine the negotiability of agency rules and regulations for purposes of collective bargaining. The issue is one of statutory construction under the Federal Labor-Management Relations Act ("FLMRA"), Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. Sec. 7101 et seq. (1982). The Act provides, inter alia, that agency rules or regulations may be subjects for collective bargaining if the Federal Labor Relations Authority ("FLRA" or "the Authority") has determined in a negotiability proceeding that there is no "compelling need" for the rule or regulation. 5 U.S.C. Sec. 7117(a), (b). We must decide whether a negotiability proceeding is the only permissible procedure for the resolution of compelling need or whether the Authority may alternatively make a compelling need determination in the context of an unfair labor practice (ULP) proceeding under 5 U.S.C. Sec. 7118.
The Authority has held, pursuant to 5 C.F.R. Sec. 2423.5 (1985), that it may make the compelling need determination in a ULP proceeding where an agency has by regulation unilaterally acted to change existing conditions of employment. We disagree. The statute makes clear that the Sec. 7117(b) negotiability appeal is the only authorized procedure for the purpose. Therefore, we reverse and remand the case to the Federal Labor Relations Authority for determination of compelling need pursuant to 5 U.S.C. Sec. 7117(b).
In April 1981 the Department of the Army issued a regulation, AR 690-400, Chapter 430, setting forth a new performance appraisal system. The Army directed its components, including petitioner Fort Belvoir, to institute the new system no later than October 1, 1981. The new regulation provided, inter alia, that employees with current annual ratings of "Highly Successful" would be credited with two years of additional service for reduction-in-force purposes. It also provided that rating supervisors would discuss proposed appraisals of performance with rating reviewers before discussing such appraisals with the employees themselves.
After issuance of the new regulation but prior to its institution, the American Federation of Government Employees, AFL-CIO, Local 1052 ("the union"), exclusive representative of a unit of employees at Fort Belvoir, met with management to negotiate over the impact and implementation of the new system. The union advanced two proposals in conflict with the regulation: 1) that employees with current annual ratings of "Highly Successful" not have any years added for reduction-in-force purposes; and 2) that an employee's supervisor prepare his proposed performance appraisal, give it to the employee for his signature, and discuss it with him before discussing it with the rating reviewer. After checking with the Army, Fort Belvoir responded that it could not negotiate over the procedures, and the new regulation took effect on June 1, 1981.
Thereafter, the union instituted an unfair labor practice proceeding under 5 U.S.C. Sec. 7118. The General Counsel of the FLRA accordingly filed a complaint against both Fort Belvoir and the Army, alleging that the Fort had violated 5 U.S.C. Sec. 7116(a)(1) and (5) by refusing to bargain over the union's proposals and alleging that the Army had violated 5 U.S.C. Sec. 7116(a)(1) by preventing the Fort from bargaining, thereby interfering with the collective bargaining relationship between the union and Fort Belvoir. 1 The case came before the Federal Labor Relations Authority on briefs submitted by the Army and Fort Belvoir and by the FLRA's General Counsel.
The Army's defense rested upon 5 U.S.C. Sec. 7117, which provides that the duty to bargain does not extend to matters which are the subject of agency-wide regulation unless the FLRA has determined that there is no compelling need for the regulation. To determine compelling need, the statute authorizes a negotiability proceeding, an expedited process that, unlike a ULP proceeding, does not involve the FLRA's General Counsel. As a negotiability appeal had not taken place, the Army argued, the union could not raise the matter in an unfair labor practice proceeding.
The Authority's General Counsel argued that the FLRA could make the necessary compelling need determination in the context of an unfair labor practice proceeding, as opposed to a negotiability appeal, in this instance. Regulations promulgated by the Authority pursuant to 5 U.S.C. Sec. 7117 ("Expedited Review of Negotiability Issues") 2 and 5 U.S.C. Sec. 7118 ("Unfair Labor Practice Proceedings") 3 permit the union to choose between the two procedures where "the matter proposed to be bargained" involves "actual or contemplated changes in conditions of employment." Since such changes were involved here, in unilateral action taken by the agency, the General Counsel argued that a negotiability proceeding was not the exclusive remedy provided by the statute.
Relying upon its earlier holding in Defense Logistics Agency (Cameron Station, Virginia), et al., 12 FLRA No. 86 (1983), the Authority ruled that it could decide the compelling need issue in an unfair labor practice proceeding where an agency had issued or revised a regulation that caused a unilateral change in conditions of employment. 4 U.S. Army Engineer Center, et al., 13 FLRA No. 116 (1984). Proceeding to the merits, the Authority found that the Army failed to carry its burden of demonstrating a compelling need for the new regulation; 5 hence both proposals were negotiable. Consequently, the Authority held the Army guilty of an unfair labor practice in violation of 5 U.S.C. Sec. 7116(a)(1), although it dismissed charges against Fort Belvoir because its actions had been directed by the Department of the Army. In addition to issuing a cease-and-desist order against the Army, the Authority directed it both to permit Fort Belvoir to bargain on the two proposals and to post appropriate notices. The Army and Fort Belvoir brought this appeal; the FLRA cross-petitioned for enforcement of its order.
The Federal Labor Management Relations Act states in unambiguous terms that, where an agency regulation is asserted as a bar to negotiations between a governmental employer and a union, the FLRA must determine that no compelling need for the regulation exists before any duty to bargain arises on the part of the employer. The sole statutory procedure for making the compelling need determination is a negotiability appeal prescribed by 5 U.S.C. Sec. 7117(b) and the relevant regulations of the FLRA. 5 C.F.R. Sec. 2424. 5 U.S.C. Sec. 7117 provides, in relevant part, as follows (emphasis supplied):
(a) ... (2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation.
(3) Paragraph (2) of the subsection applies to any rule or regulation issued by any agency or issued by any primary national subdivision of such agency... 6
(b) (1) In any case of collective bargaining in which an exclusive representative alleges that no compelling need exists for any rule or regulation referred to in subsection (a)(3) of this section which is then in effect and which governs any matter at issue in such collective bargaining, the Authority shall determine under paragraph (2) of this subsection, in accordance with regulations prescribed by the Authority, whether such a compelling need exists.
(2) For the purpose of this section, a compelling need shall be determined not to exist for any rule or regulation only if--
(A) the agency, or primary national subdivision, as the case may be, which issued the rule or regulation informs the Authority in writing that a compelling need for the rule or regulation does not exist; or
(B) the Authority determines that a compelling need for a rule or regulation does not exist.
(3) A hearing may be held, in the discretion of the Authority, before a determination is made under this subsection. If a hearing is held, it shall be expedited to the extent practicable and shall not include the General Counsel as a party.
(4) The agency, or primary national subdivision, as the case may be, which issued the rule or regulation shall be a necessary party to any hearing under this subsection.
While the statute requires expedition of any discretionary hearing, the regulations state the Authority shall expedite all proceedings under the section and shall issue a written decision "at the earliest possible date." 5 C.F.R. Sec. 2424.10.
"As in all cases involving statutory construction, 'our starting point must be the language used by ...
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