38:0052(8)CU - - Treasury, IRS, Detroit District, Detroit, MI and NTEU - - 1990 FLRAdec CU - - v38 p52



[ v38 p52 ]
38:0052(8)CU
The decision of the Authority follows:


38 FLRA No. 8

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

DETROIT DISTRICT

DETROIT, MICHIGAN

(Activity/Petitioner)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Union)

5-CU-00007

DECISION AND ORDER ON APPLICATION FOR REVIEW

November 7, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review filed by the Internal Revenue Service (the Agency) under section 2422.17(a) of the Authority's Rules and Regulations. The Agency (on behalf of the Activity) seeks review of the Regional Director's decision and order on a petition filed by the Activity under section 7111(b)(2) of the Federal Service Labor-Management Relations Statute (the Statute) seeking to clarify the bargaining unit status of Elizabeth M. Khamati, a revenue officer in the Activity's office, who is a registered alien. The Union filed an opposition to the application for review.

The Union is the exclusive representative of a nationwide bargaining unit of all nonprofessional employees of the Internal Revenue Service's District, Regional, and National Offices. During the course of a grievance concerning the discharge of Khamati, the Activity filed the instant petition. The petition sought to clarify the bargaining unit to exclude Khamati on the ground that, as an alien, Khamati was not an "employee" within the meaning of section 7103(a)(2)(i) of the Statute at the time of her discharge.

The Agency seeks review of the Regional Director's determination that Khamati was an "employee" at the time of her discharge. We grant the Agency's application for review on the ground that a substantial question of law or policy is raised because of the absence of Authority precedent on the issue whether an "alien" is an "employee" within the meaning of section 7103(a)(2)(i) of the Statute. We conclude, in agreement with the Regional Director, that Khamati, a registered alien who occupied a position in the United States, was an employee within the meaning of the Statute at the time of her discharge and was, therefore, properly included in the bargaining unit.

II. Background and Regional Director's Decision

The Union grieved Khamati's termination under the parties' negotiated grievance/arbitration procedures, and requested that the matter be resolved through arbitration. The Activity took the position that Khamati was not an employee within the meaning of the Statute, and, therefore, she was not entitled to use the negotiated grievance procedure to appeal her termination from employment. Accordingly, the Activity filed the instant petition.

The parties stipulated before the Regional Director that: (1) Khamati encumbered a position, Revenue Officer GS-1169-07, that was included in the bargaining unit; and that, absent the issue raised in this case, as a bargaining unit member, Khamati would have been entitled to pursue the grievance/arbitration procedures of the parties' negotiated agreement; (2) Khamati encumbered the position at the time of her termination from Federal service on April 7, 1989; (3) at all times during which Khamati encumbered the position, she was an alien--that is, she was a citizen of Kenya, but was a resident of the United States and a registered alien in the United States; and (4) the only issue in this case is whether Khamati's citizenship status during the time she encumbered the position excluded her from the definition of an "employee" under section 7103(a)(2)(i) of the Statute. Regional Director's Decision (RD) at 2.

Section 7103(a)(2)(i) provides:

(2) 'employee' means an individual--
(A) employed in an agency; or
(B) whose employment in an agency has ceased because of any unfair labor practice under section 7116 of this title . . . ; but does not include--
(i) an alien or noncitizen of the United States who occupies a position outside the United States[.]

The Regional Director found that the legislative history of the Statute is silent as to section 7103(a)(2)(i) and that the section has not been interpreted by the Authority. The Regional Director noted that the Activity and the Union had submitted "legal memoranda of extensive erudition on [s]tatutory construction." RD at 3. The Regional Director stated:

If 5 U.S.C. 7103(a)(2)(i) is interpreted in the disjunctive so that aliens as an all inclusive category are excluded from the definition of employee, then Ms. Khamati was not in the bargaining unit when she was discharged. Therefore, she would not have been covered by the Agreement and her discharge is not arbitrable. However, if 5 U.S.C. 7103(a)(2)(i) is interpreted in the conjunctive so that the clause "who occupies a position outside the United States," modifies both "alien" and "noncitizen of the United States," then Ms. Khamati was in the bargaining unit when she was discharged. Accordingly, she would have been covered by the Agreement and the arbitrator would be obligated to hear her grievance.

Id.

The Regional Director found that "the plain meaning of [section] 7103(a)(2)(i) does not exclude an alien, who occupies a position within the United States, from the definition of an employee." Id. at 4. He reasoned that if Congress meant to exclude all aliens as a category, it would have been meaningless to further exclude the subcategory of noncitizens occupying positions outside the United States. To avoid the problem such an interpretation would present, the Regional Director found the word "or" between the terms "alien" and "noncitizen" to be a connective word so that the clause "who occupies a position outside the United States" modifies both terms. Id.

The Regional Director found that "[t]he purpose of the exclusion set forth in [section] 7103(a)(2)(i) would seem to be concerned about conflict of the Labor-Management Relations Statute with the employment laws of a host nation or treaty enacted with it." Id. He noted that if an alien is "lawfully employed in a position located within the United States and doing the same work as citizens employed in like positions, such concerns are not present." Id. The Regional Director concluded that, accordingly, Khamati was properly included in the bargaining unit at the time she was discharged.

III. Positions of the Parties

A. Agency's Application for Review

The Agency states that "the issue is one of statutory construction." Application for Review (Application) at 3. The Agency alleges that the Regional Director's Decision raises a substantial question of law or policy because of the absence of Authority precedent on the issue, citing section 2422.17(c)(1)(i) of our Regulations. Id. at 3-4.

The Agency states that under section 7103(a)(2)(i) the "definition of an 'employee' excludes from the Statute's coverage an individual who is 'an alien or non-citizen of the United States who occupies a position outside the United States.'" Id. at 4. The Agency further states that the specific issue before us is "whether the clause 'who occupies a position outside the United States' modifies 'an alien' as well as 'non-citizen of the United States.'" Id. The Agency contends that "the above clause modifies only 'non-citizen' and that Ms. Khamati, due to her alien status, is accordingly excluded from the bargaining unit." Id.

The Agency argues that applying principles of statutory construction leads to the conclusion that the terms "alien" and "noncitizen" are distinct terms, and are both distinct sub-sets of noncitizens of the United States. It argues that the effect of the Regional Director's finding is that the terms are synonymous, and one of the terms is thus superfluous, and that such a construction fails because it does not give separate effect to each statutory term. Id. at 5-9.

The Agency "posits that the Congress deliberately sought to withhold from those who do not owe permanent allegiance to the United States the privileges extended to other employees under the Statute." Id. at 12. The Agency argues that not all categories of employees under the Statute are entitled to the same rights, noting the "various appropriation act restrictions" as to noncitizens contained in the Federal Personnel Manual. Id. at 13-14.

The Agency notes that "[t]he definition of 'employee' for purposes of [the Statute] is conspicuously different from those used elsewhere in the [Civil Service Reform] Act." Id. at 15 (footnote and citations omitted). The Agency argues that "[w]hile Congress chose in the Civil Service Reform Act not to extend collective bargaining rights to aliens, it nevertheless did not exclude them with respect to other rights." Id. The Agency concludes, in sum, that proper statutory construction requires a finding that because of her alien status Khamati was not an employee within the meaning of section 7103(a)(2)(i) of the Statute. According to the Agency, a contrary interpretation "establishes redundancy" and "ignores the clearly established and traditional preference for U.S. nationals in the civil service." Id. at 16-17.

B. Union's Opposition

The Union urges that there is "no compelling reason as articulated at 5 CFR 2422.17(c) for the Authority to review the well reasoned and fully supported decision of the Regional Director. Therefore, NTEU requests denial of the application for review." Opposition at 1.

The Union asserts that the Regional Director clearly followed the principles of statutory interpretation established by judicial precedent. Id. at 6. In support of the Regional Director, the Union argues that the terms "alien" and "noncitizen" have been used interchangeably in court decisions, and that there is no indication that Congress meant the terms to be other than identical. Id. at 7-8.

The Union contends that the Agency's position that aliens should be barred from the use of the grievance process "contravenes basic policy considerations." Id. at 9. The Union notes that noncitizens, such as Khamati, "are not absolutely barred from federal employment and can appeal adverse actions to the Merit Systems Protection Board." Id. (citation omitted). The Union argues that it would thus be inconsistent to bar Khamati from the grievance/arbitration procedures of the negotiated agreement.

Id.

The Union argues that it is clear that "the correct reading of the [S]tatute is to exclude from employee status foreigners who are employed outside the United States. There is no purpose for excluding from bargaining status employees occupying" unit positions within the United States. Id. at 10. Finally, the Union argues that "[b]ased upon the unique and narrow circumstances of this case, reversing the Regional Director's decision would not promote the purpose and policies of the [S]tatute." Id.

IV. Analysis and Conclusions

We find that compelling reasons exist within the meaning of section 2422.17(c)(1) of our Regulations for granting the application for review. We grant the Agency's application for review on the ground that a substantial question of law or policy is raised because of the absence of Authority precedent on the issue of the meaning of section 7103(a)(2)(i) of the Statute. We conclude, in agreement with the Regional Director, that Khamati, a registered alien who occupied a position in the United States, was an employee within the meaning of the Statute.

Section 7103(a)(2) defines the term "employee" for purposes of the Statute. In addition to other enumerated exclusions, the term "employee" excludes "an alien or noncitizen of the United States who occupies a position outside the United States[.]" 5 U.S.C. º 7103(a)(2)(i). The only legislative history concerning section 7103(a)(2)(i) is contained in the House Report, which tracks the statutory language and states that the subparagraphs of section 7103(a)(2) "exclude certain individuals from the definition of 'employee'; aliens or noncitizens occupying positions outside the United States; [and other individuals.]" H.R. Rep. No. 95-1403 at 39. Thus, Congress did not indicate in the Statute or its legislative history that it intended the terms "alien" and "noncitizen of the United States" to refer to different classes of individuals.

We agree with the Regional Director that the plain meaning of section 7103(a)(2)(i) does not exclude aliens occupying positions within the United States from the definition of "employee." Under the interpretation urged on us by the Agency, all aliens, regardless of whether they occupy positions inside or outside the United States, would be denied coverage under the Statute. In light of the statutory language and the limited legislative history, we reject the Agency's construction. In the absence of any affirmative expression of congressional intent to deny aliens who occupy positions inside the United States from the protections of the Statute, we do not find that Congress intended such a result.

Accordingly, we conclude that the Regional Director was correct in concluding that Khamati, a registered alien who occupied a position in the United States, was an employee within the meaning of section 7103(a)(2)(i) of the Statute at the time of her discharge. The Regional Director correctly found, therefore, that Khamati is included in the