United Power Trades Organization v. Federal Labor Relations Authority

Decision Date23 May 1995
Docket NumberNo. 93-70827,93-70827
Citation60 F.3d 835
PartiesNOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED POWER TRADES ORGANIZATION Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Before: FLETCHER, REINHARDT, and NOONAN, Circuit Judges.


The United Power Trades Organization (Union) contests a determination by the Federal Labor Relations Authority (FLRA) that a bargaining proposal regarding license fees conflicted with federal law or a government-wide rule or regulation and was therefore non-negotiable under section 7117(a)(1) of the Federal Service Labor-Management Statute Act.


During collective bargaining between the Union and the United States Department of the Army, Army Corps of Engineers (Army), the Union sought to negotiate with the Army over the following proposal:

The Agency shall reimburse bargaining unit employees for any license fees they are required to pay, i.e.: motor vehicle licenses, sewage treatment licenses, and the like, provided that the employer requires the employees to hold such licenses as a condition of employment.

The Army refused to bargain over the proposal, concluding that it was non-negotiable because the proposal was inconsistent with federal law. Under section 7117(a)(1) of the Federal Service Labor-Management Statute Act ("the FSLMS" or "the Act"), unions and government agencies may bargain only over matters that are "not inconsistent with any federal law or any government-wide rule or regulation." See also Bureau of Alcohol, Tobacco, and Firearms v. FLRA, 464 U.S. 89, 92 (1983). The Union subsequently sought and obtained a decision by the FLRA concerning the negotiability of the proposal. That decision did not aid the Union's cause.

The FLRA confirmed the Army's conclusion that the provision was non-negotiable because it conflicted with existing federal law. The FLRA based its conclusion upon its holding in National Association of Government Employees v. U.S. Department of the Navy, 47 FLRA 750, 755-56 (1993). In National Association of Government Employees, the FLRA concluded that a provision regarding license and permit fees was not negotiable because it was inconsistent with a government-wide rule or regulation; in reaching this conclusion, the FLRA relied upon the decisions of the Comptroller General, who had determined that such expenses constituted personal expenses that were not reimbursable by the agency. Id. According to the Comptroller General, license fees and the like may be reimbursed only when explicit statutory authority provides for such payments. See, e.g., 61 Comp. Gen. 357; 49 Comp. Gen. 450; 36 Comp. Gen. 621.

The Union raises two arguments on appeal. First, it interprets section 7117 -- the provision of the FSLMS that requires bargaining proposals to be consistent with federal law or government-wide rules and regulations -- to apply only to proposals that are already governed by the rules or regulations of the negotiating agency. Under the Union's theory, because the Army has not promulgated any specific regulations concerning the reimbursement of license fees, the proposal in question does not conflict with the requirements of section 7117. This novel interpretation of section 7117, however, is contrary to existing Ninth Circuit and Supreme Court precedent, which hold that section 7117(a)(1) and...

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