United States Dep't of The Air Force v. Fed. Labor Relations Auth.

• Decision Date: 27 May 2011
• Docket Number: No. 10–1299.,10–1299.
• Parties: UNITED STATES DEPARTMENT OF the AIR FORCE, 4th Fighter Wing, Seymour Johnson Air Force Base, Petitionerv.FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

648 F.3d 841

190 L.R.R.M. (BNA) 3089

396 U.S.App.D.C. 290

UNITED STATES DEPARTMENT OF the AIR FORCE, 4th Fighter Wing, Seymour Johnson Air Force Base, Petitioner

v.FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 10–1299.

United States Court of Appeals, District of Columbia Circuit.

Argued April 12, 2011.Decided May 27, 2011.

On Petition for Review of an Order of the Federal Labor Relations Authority.Robert D. Kamenshine, Attorney, U.S. Department of Justice, argued the cause for petitioner. With him on the briefs were Tony West, Assistant Attorney General, and William Kanter, Attorney.Joyce G. Friedman, Attorney, Federal Labor Relations Authority, argued the cause for respondent. With her on the brief was Rosa M. Koppel, Solicitor.Before: ROGERS, GRIFFITH and KAVANAUGH, Circuit Judges.Opinion for the Court by Circuit Judge ROGERS.ROGERS, Circuit Judge:

The Air Force petitions for review of the decision and order of the Federal Labor Relations Authority (“FLRA”) that a union proposal for uniform cleaning is a negotiable condition of employment. Reversing its position before the FLRA, the Air Force contends that the proposal is non-negotiable because it would require the use of appropriated funds for a purpose not authorized by law. Section 1593 of title 10 of the U.S.Code authorizes certain appropriated funds to be used “for uniforms ... or for allowance for uniforms,” whereby the Air Force may either “pay an allowance” to employees required by law “to wear a prescribed uniform” or, “[i]n lieu of providing an allowance ... [,] provide a uniform” to employees. See also 5 U.S.C. § 5901(a). Based on a recently discovered Conference Report, the Air Force contends that neither alternative authorizes the expenditure of funds for the provision of services related to uniforms and statutory silence does not leave it discretion to do so. The FLRA, invoking the waiver provision, 5 U.S.C. § 7123(c), contends the court lacks jurisdiction to entertain the petition because the Air Force failed to present its new interpretation of the uniform statutes below.

We hold that the Air Force's belated discovery of a constitutional appropriations bar, see U.S. Const. art. I, § 9, cl. 7, is an “extraordinary circumstance[ ]” under section 7123(c) that permits consideration of an argument not presented to the FLRA. Were the exception not to apply, the FLRA's order would, in effect, permit the Air Force, by contract with the Union, to authorize the expenditure of funds beyond what Congress has approved. Having jurisdiction, we grant the petition. Whether because the plain text of the uniform statutes does not authorize use of funds for cleaning uniforms, or because the statutory silence creates ambiguity and the FLRA must defer to the permissible interpretation of 10 U.S.C. § 1593 by the Department of Defense, which administers the statute, the Air Force has no duty to bargain over uniform cleaning services.

I.

As of August 2007, the Air Force requires its Air Reserve Technicians, who are citizen-employees required as a condition of their employment to maintain membership in a military reserve unit, to “wear the military uniform while performing civilian duties.” Air Force Instruction 36–801 § 1.1.1.9 (Apr. 29, 1994) (incorporating change Aug. 6, 2007). The National Association of Independent Labor, Local 7 (“the Union”), challenged the “compelling need” for the uniform requirement, see 5 U.S.C. § 7117; 5 C.F.R. § 2424.50, and alternatively proposed as a subject for negotiation that the Air Force provide uniform cleaning services.

The Air Force claimed it had no duty to bargain over uniform maintenance because “[t]his matter is specifically provided for by federal statute and therefore is not a condition of employment under 5 U.S.C. [§ ] 7103(a)(14).” Decl. of Negotiability 2 (Feb. 3, 2010). In its view, “5 U.S.C. § 5901 addresse[d] the payment of a uniform allowance for the maintenance of the uniform.” Id. When the Union filed a petition for a review of negotiability issues with the FLRA, see 5 C.F.R. § 2424.22, the Air Force responded to the same effect, stating that the uniform maintenance proposal was non-negotiable because under FLRA precedents uniform cleaning expenses were expressly provided for in 10 U.S.C. § 1593 and thus fell outside the duty to bargain. Alternatively, it argued that the proposal was inconsistent with 10 U.S.C. § 1593, which authorized the Air Force either to furnish a uniform or to provide a uniform allowance, but not to “ pay a uniform allowance [and] also to furnish uniforms in the form of cleaning services to those employees who also receive a uniform allowance.” Air Force Statement of Position 13–14 (Mar. 23, 2010). The Union responded by pointing to more recent FLRA precedents as supporting the negotiability of the uniform cleaning proposal.

The FLRA agreed with the Union, ruling the Air Force had not established that the uniform statutes left it no discretion to bargain where the uniform cleaning proposal would not require it to exceed the dollar amount of the uniform allowance, and further that the proposal was not inconsistent with the uniform statutes because providing cleaning services was not the equivalent of furnishing a uniform. See Nat'l Ass'n of Indep. Labor Local 7, 64 F.L.R.A. 1194, 1199–1200, 2010 WL 3071572 (2010). The Air Force petitions for review.

II.

Under 5 U.S.C. § 7123(c), “[n]o objection that has not been urged before the Authority ... shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances.” The petition for review by the Air Force presents a new interpretation of the uniform statutes, 10 U.S.C. § 1593; 5 U.S.C. § 5901, based on a belatedly discovered Conference Report that, in its view, precludes payment for cleaning services. Unless the Air Force's petition falls within the “extraordinary circumstances” exception to the waiver provision, then, the court must dismiss the petition for lack of jurisdiction.

The court, recognizing its jurisdiction normally does not extend to an “objection that has not been urged before the Authority,” Am. Fed'n of State, Cnty. & Mun. Emps. Capital Area Council 26 v. FLRA, 395 F.3d 443, 451–52 (D.C.Cir.2005) (citation and quotation marks omitted), has interpreted the “extraordinary circumstances” exception narrowly. The Supreme Court held that the “plain language [of section 7123(c) ] evinces an intent that the FLRA shall pass upon issues arising under [Title VII of the Civil Service Reform Act of 1978, known as the Federal Service Labor–Management Relations Act, 5 U.S.C. § 7101 et seq.¹ ], thereby bringing its expertise to bear on the resolution of those issues.” EEOC v. FLRA, 476 U.S. 19, 23, 106 S.Ct. 1678, 90 L.Ed.2d 19 (1986) (per curiam). In that case, the Court concluded it lacked jurisdiction to decide the question of negotiability because the principal arguments advanced by the EEOC against negotiability were not presented to the FLRA, and there was no extraordinary circumstance to excuse the omission. Id. at 23–24, 106 S.Ct. 1678.² “[T]he Court so held despite the fact that, had EEOC's contentions been correct, the FLRA decision would have undercut congressional policy.” U.S. Dep't of Hous. & Urban Dev. v. FLRA, 964 F.2d 1, 4 (D.C.Cir.1992). Accordingly, this court concluded that it is not enough that the FLRA's order would arguably circumvent this court's precedent or even a congressional preference with regard to a class of employees. See id. at 3–4. Instead, in an exemplary circumstance, the court has applied the “extraordinary circumstances” exception to reach arguments not presented to the FLRA where they “simply track the objections considered by the [FLRA]” in another case. U.S. Dep't of Interior Minerals Mgmt. Serv. v. FLRA, 969 F.2d 1158, 1161 (D.C.Cir.1992). In other words, a failure to present arguments to the FLRA was excused because the court enjoyed the benefit of the FLRA's expertise in addressing the same arguments in another case and “a rehearing petition would have been futile given that the Authority had just found an identical proposal negotiable.” Id.

The Air Force suggests that FLRA precedent gave it “ample reason” to conclude that presenting its new argument to the FLRA would have been futile. Reply Br. 10. It points to National Association of Government Employees, SEIU, AFL–CIO, 26 F.L.R.A. 515, 526, 1987 WL 90445 (1987), where the FLRA, based on an examination of the uniform statutes and Senate Report No. 83–1992 (1954), reprinted in 1954 U.S.C.C.A.N. 3816, 3826, concluded that 5 U.S.C. chapter 59, subchapter I (where section 5901 is found) “deals comprehensively with the payment of a uniform allowance by an agency for the maintenance of the uniform which the agency requires employees to wear.” See also Ass'n of Civilian Technicians, Wisconsin Chapter, 26 F.L.R.A. 682, 684, 1987 WL 90482 (1987). Subsequent FLRA decisions addressing uniform maintenance proposals emphasized and relied almost exclusively on the Senate Report in ruling that “the legislative scheme encompassed both the purchase and upkeep of the uniforms.” See, e.g., Nat'l Treasury Emps. Union, 46 F.L.R.A. 696, 776–77, 1992 WL 357711 (1992).

The difficulty with the Air Force's futility argument is twofold. First, the legislative history objections now presented do not “simply track the objections considered by the Authority” in another case. U.S. Dep't of Interior, 969 F.2d at 1161. Second, the Air Force presumes that the FLRA, having relied on legislative history in the past, would have resisted considering legislative history not previously addressed in an opinion. The futility exception does not reach that far. See Ga. State Chapter Ass'n of Civilian Technicians v. FLRA, 184 F.3d 889, 892 (D.C.Cir.1999); cf. W & M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341, 1346 (D.C.Cir.2008). Particularly in the instant case, by the mid–1990s the FLRA had...