U.S. Dept. of Agriculture v. Federal Labor Relations Authority

• Decision Date: 14 September 1982
• Docket Number: I,No. 81-1948,AFL-CI,81-1948
• Parties: 111 L.R.R.M. (BNA) 2007 UNITED STATES DEPARTMENT OF AGRICULTURE, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, and The American Federation of Government Employees,ntervenor/Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1242

691 F.2d 1242

111 L.R.R.M. (BNA) 2007

UNITED STATES DEPARTMENT OF AGRICULTURE, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent and The American Federation of Government Employees, AFL-CIO Intervenor/Respondent.

No. 81-1948.

United States Court of Appeals Eighth Circuit.

Submitted March 9, 1982.

Decided Aug. 9, 1982.

Rehearing and Rehearing En Banc Denied Sept. 14, 1982.

J. Paul McGrath, Asst. Atty. Gen., William Kanter, Douglas Letter, Attys., Appellate Staff Civ. Div., Dept. of Justice, Washington, D. C., for petitioner.

Robert J. Freehling, Sol., Elizabeth Medaglia, Associate Sol., Ellen Stern, Atty., Federal Labor Relations Authority, Washington, D. C., for respondent.

Charles A. Hobbie, Staff Counsel, Mark D. Roth, Asst. Gen. Counsel, James R. Rosa, Gen. Counsel, American Federation of Government Employees, AFL-CIO, Washington, D. C., for intervenor/respondent.

Robert M. Tobias, Gen. Counsel, John F. Bufe, Deputy Gen. Counsel, William F. White, Sean J. Rogers, Associate Gen. Counsel, Cary P. Sklar, Asst. Counsel, National Treasury Employees Union, Washington, D. C., for amicus curiae.

Before HEANEY, BRIGHT and HENLEY ^*, Circuit Judges.

BRIGHT, Circuit Judge.

This case reaches this court on a petition to review and cross-application for enforcement of a Federal Labor Relations Authority (FLRA) decision finding that the Department of Agriculture (USDA) committed an unfair labor practice. The USDA refused to pay travel expenses and per diem for employees acting as union representatives in collective bargaining negotiations with the USDA. The case presents this court with a narrow issue: whether the Government must pay travel expenses and per diem to federal service employees who represent their unions in contract negotiations with government agencies. We hold that the Government need not make these payments.

I. Federal Labor Relations History.

This case arises under the Civil Service Reform Act of 1978 (the Act), 5 U.S.C. Secs. 7101-7135 (Supp. IV 1980). The Act codified the federal service labor relations program previously governed by executive order. We therefore briefly review these orders as background for this decision.

In January 1962, President Kennedy promulgated Executive Order 10988, see 3 C.F.R. 531 (Comp. 1959-63), which governed federal service labor-management relations between 1962 and 1969. Under Executive Order 10988, the granting of "official time" ¹ to employees serving as union representatives was solely within the agency's discretion. The Executive Order, however did not provide for the payment of travel expenses or per diem. ² In 1970, Executive Order 11491 became effective, superseding Executive Order 10988. It authorized the Federal Labor Relations Council as the central authority to oversee federal service labor-management relations. Executive Order 11491 provided that employees representing a union in negotiations with management would not receive official time. ³ This provision reflected the belief that an employee works for the labor organization when negotiating an agreement on behalf of a federal employees union. Report of the Federal Labor Relations Council (FLRC Report), Legis.Hist. at 1167.

One year after the issuance of Executive Order 11491, the Federal Labor Relations Council initiated a review and assessment of its operations under the Executive Order. This review resulted in the promulgation of Executive Order 11616, which amended Executive Order 11491 to incorporate the suggested changes. FLRC Report, Legis.Hist. at 1168. Executive Order 11616, which became effective in November 1971, modified the original prohibition on the payment of official time to permit an agency and a union to agree to a reasonable amount of official time for employees representing unions in negotiations. Specifically, an employee could receive up to 40 hours or up to one-half the time spent in negotiations during working hours. ⁴ This order eliminated the absolute prohibition on official time to avoid undue hardship on employees who represented the union, but expressly limited the amount of official time "to maintain a reasonable policy with respect to union self-support and an incentive to economical and businesslike bargaining practices." FLRC Report, Legis.Hist. at 1169. Executive Order 11491, as amended, however, did not authorize agencies to pay travel expenses or per diem for employees serving as union negotiators. FLRC Report, Legis.Hist. at 1264. Executive Orders 11636 and 11838 further amended Executive Order 11491, but did not change the provisions at issue here.

In 1978, Congress passed the Civil Service Reform Act of 1978, for the first time codifying the federal service labor relations program. In response to criticism of the Federal Labor Relations Council, Congress established a new body along the lines of the National Labor Relations Board, which it named the Federal Labor Relations Authority (FLRA). See Department of Defense v. FLRA, 659 F.2d 1140, 1144-45 (D.C.Cir.1981) (outlining authority of FLRA), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). Congress did not specifically authorize travel expenses or per diem for employees acting as union representatives in collective bargaining sessions, stating only that these employees should receive official time "during the time the employee otherwise would be in a duty status." 5 U.S.C. Sec. 7131(a) (Supp. IV 1980). ⁵

II. Factual Background.

The parties stipulated to the facts in this case. Local 3748 of the American Federation of Government Employees (Union) represents the bargaining unit, which consists of certain employees of the Department of Agriculture (USDA) located in Fargo, Grand Forks, and Mandan, North Dakota; Brookings, South Dakota; and Palmer, Alaska. Five USDA employees traveled from Mandan and Brookings to Fargo on four occasions in 1980 to participate in negotiations on behalf of the Union. The employees received time off with pay from their usual duties during negotiations, but the USDA refused their request for travel expenses and per diem.

When the USDA refused to reimburse the employees for their travel expenses and per diem, the Union filed an unfair labor practice charge with the FLRA. See 5 U.S.C. Sec. 7118 (Supp. IV 1980). The FLRA regional office issued a complaint which it later supplemented with another charge for the same conduct. The complaints were consolidated and set for hearing before an administrative law judge in Fargo, but then were transferred directly to the FLRA. See 5 C.F.R. Sec. 2429.1(a) (1980).

On July 15, 1981, after briefing, the FLRA issued its decision finding that the USDA had committed unfair labor practices under sections 7116(a)(1) and (8), ⁶ by denying travel and per diem payments to USDA employees while they represented the Union in contract negotiations. In reaching this decision, the FLRA relied primarily on an earlier official interpretation in which it held government employees entitled to travel expenses and per diem while representing their union in negotiations. Interpretation and Guidance, 2 FLRA 264, 270 (1979) (Interpretation).

In the Interpretation, the FLRA first noted that section 7131 of the Act requires that employees be granted official (paid) time while negotiating during hours they would otherwise have been on duty status. It conceded that neither the language of the Act, nor the legislative history, directly addressed payment of travel expenses and per diem, but concluded that employees representing the union in collective bargaining nevertheless should receive travel expenses and per diem because they were engaged in the official business of the Government. The FLRA considered the conclusion compelled by congressional findings that collective bargaining is in the public interest and that it contributes to the effective conduct of public business. See 5 U.S.C. Sec. 7101(a) (Supp. IV 1980). Because other government employees traveling on official business received travel expenses and per diem, see 5 U.S.C. Sec. 5702 (1976), the FLRA concluded that employees acting as union negotiators should also receive travel expenses and per diem.

The USDA petitioned this court, under 5 U.S.C. Sec. 7123(a), for review of the FLRA's final determination ordering the USDA to pay travel expenses for the five employees involved and to desist from any refusal to make these payments in the future. The FLRA cross-petitioned for enforcement of its order under 5 U.S.C. Sec. 7123(b), while the American Federation of Government Employees (AFGE) intervened to support the FLRA position. ⁷

III. Discussion.

In reaching our decision, we consider three areas of inquiry: (1) whether the FLRA construction of the Act, embodied in its Interpretation, is entitled to any deference; (2) whether the legislative history sheds any light on the proper construction of the language of the Act; and (3) whether public policy or other considerations support the FLRA's construction of the Act.

A. Standard of Review.

The FLRA correctly contends that our review of its action is limited. The Civil Service Reform Act provides that judicial review of FLRA decisions "shall be on the record in accordance with section 706 [of Title V]." 5 U.S.C. Sec. 7123(c) (Supp. IV 1980). Section 706 states that agency action should be set aside only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. Sec. 706 (1976). As the D.C. Circuit recently stated: "[i]f the FLRA's construction of the statute is reasonably defensible, we are not free to reject it merely because we might decide differently if confronted with the question in the first instance." Department of Defense v. FLRA, supra, 659 F.2d at 1162 n.121.

This standard, however, does not require that we summarily affirm every FLRA action, especially where, as here, the issue turns on statutory construction.

The construction put on a statute by the...