45:0835(78)CA/CO - - The Kennedy Center for the Performing Arts (Respondent) and Rebecca L. Wood (Charging Party/Individual) AND Treasurers and Ticket Sellers Union, Local No. 869 International Alliance of Theatrical Stage Emplyees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO (Respondent/Union) and Rebecca L. Wood (Charging Party/Individual) - - 1992 FLRAdec CA/CO - - v45 p835

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[ v45 p835 ]
45:0835(79)CA/CO
The decision of the Authority follows:

 
45 FLRA No. 78
 
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
 

THE KENNEDY CENTER FOR THE PERFORMING ARTS
(Respondent)
 
and
 
REBECCA L. WOOD
(Charging Party/Individual)

3-CA-10050
 
AND
 
TREASURERS AND TICKET SELLERS UNION, LOCAL NO. 868
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES
AND MOVING PICTURE MACHINE OPERATORS OF THE
UNITED STATES AND CANADA, AFL-CIO
(Respondent/Union)
 
and
 
REBECCA L. WOOD
(Charging Party/Individual)
 
3-CO-10004
 
DECISION AND ORDER REMANDING CASE
 
August 12, 1992
 
Before Chairman McKee and Members Talkin and Armendariz.
 
 
I. Statement of the Case 

This consolidated unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge in the above-entitled proceeding. The Kennedy Center for the Performing Arts (the Kennedy Center) and the Union (collectively referred to as the Respondents) each filed an opposition to the General Counsel's exceptions.

The General Counsel issued a consolidated complaint alleging that the Respondents violated certain provisions of the Federal Service Labor-Management Relations Statute (the Statute) by "enter[ing] into a hiring hall agreement that resulted in discrimination, coercion, and other unlawful actions against the [C]harging [P]arty . . . ." Judge's Decision at 2. In particular, the consolidated complaint alleges that the Respondent Kennedy Center violated section 7116(a)(1), (2), and (8) of the Statute by: (1) entering into and maintaining the "hiring hall" practice contained in the parties' agreement; and (2) refusing to rehire the Charging Party, a former employee of the Kennedy Center, based on the "hiring hall" practice contained in the parties' agreement. Id. The complaint also alleges that the Union violated section 7116(b)(1), (2), and (8) and section 7116(c) of the Statute by: (1) entering into and maintaining the hiring hall practice contained in the parties' agreement; (2) failing and refusing to refer the Charging Party for employment with the Kennedy Center; and (3) expelling the Charging Party from its membership.

The Respondents both filed motions requesting that the consolidated complaint be dismissed on the basis that the Authority lacked jurisdiction over the complaint because the Kennedy Center was not an agency within the meaning of section 7103(a)(3) of the Statute.1/ The Judge did not hold a hearing on the consolidated complaint but ruled on the Respondents' motions to dismiss the complaint. In ruling on the motions, the Judge agreed that the Kennedy Center is not an agency within the meaning of section 7103(a)(3) of the Statute and recommended that the complaint be dismissed for lack of jurisdiction.

Upon consideration of the Judge's decision and the entire record, we find, contrary to the Judge, that the Authority has jurisdiction in this proceeding. Accordingly, we will remand this case to the Chief Administrative Law Judge2/ for further processing consistent with this decision.

II. Judge's Decision

In ruling on the Respondents' motions to dismiss the complaint, the Judge stated that if the Kennedy Center was not an agency within the meaning of section 7103(a)(3) of the Statute, as asserted by the Respondents, "none of the pertinent provisions of the [Statute] would apply to the Kennedy Center." Id. Further, the Judge stated that, if this were so, "[i]t would also follow that the Kennedy Center does not employ anyone who is an 'employee' within the meaning of section 7103(a)(2) of the [Statute] . . . and therefore that none of the alleged actions of the Union are unfair labor practices as defined in the provisions of the [Statute]." Id.

The Judge noted that the Kennedy Center was established by Congress as a bureau of the Smithsonian Institution (Smithsonian) under title 5 of the United States Code. See 5 U.S.C. §§ 76h-l. Noting the relationship of the Kennedy Center to the Smithsonian and the parties' positions, the Judge stated that, for purposes of the Statute, the Kennedy Center has the same jurisdictional status as the Smithsonian. That is, in the Judge's view, determination of whether the Smithsonian is an agency within the meaning of section 7103(a)(3) of the Statute would also determine whether the Respondent Kennedy Center is an agency within the meaning of section 7103(a)(3).

The Judge noted that section 7103(a)(3) defines "agency," in relevant part, as "an Executive agency . . . ." Judge's Decision at 2. The Judge further noted that the term "Executive agency" is defined in 5 U.S.C. § 105.3/ The Judge considered the General Counsel's argument that the Respondent Kennedy Center is an "'independent establishment' [under 5 U.S.C. § 104] either in its own right or as part of the Smithsonian."4/ Id. at 3. The Judge noted that the Respondents "concede that the [Kennedy] Center is a Government agency but deny that it is an 'Executive agency.'" Id. The Judge further noted the Respondents' contention that the Kennedy Center occupies a "unique niche" outside the major branches of the Government. Id. The Judge stated that the debate presented by the parties' positions was "academic," because Congress had given a "rather clear indication" of whether the Smithsonian is an "Executive agency" within the meaning of 5 U.S.C. § 105. Id.

The Judge based his statement on his examination of the Panama Canal Act of 1979, 22 U.S.C. § 3601 et. seq., (the Panama Canal Act). According to the Judge, based on his reading of various provisions of the Panama Canal Act, Congress "distinguished" the term "Smithsonian" from "Executive agencies." Id. at 5. The Judge noted that the Panama Canal Act contains many references to "Executive agency" and to the "Smithsonian." In comparing the use of these terms in the Panama Canal Act, the Judge pointed, in particular, to 22 U.S.C. §§ 3642 and 3643, which "refer, respectively, to 'any Executive agency . . . or the Smithsonian Institution,' and to 'an Executive agency . . . and the Smithsonian Institution.'" Id. at 3. The Judge also noted the use of these terms in 22 U.S.C. § 3651.

Finally, the Judge found particularly significant the use of these terms in 22 U.S.C. § 3701. This section provides, in part, that:

(a) Nothing in this chapter shall be construed to affect the applicability of chapter 71 of Title 5, relating to labor-management and employee relations, with respect to the [Panama Canal] Commission or the operations of any other

Executive agency conducted in that area of the Republic of Panama which, on September 30, 1979, was the Canal Zone, except that in applying those provisions--

(1) the definition of "employee" shall be applied without regard to clause (i) of section 7103(a)(2) of such Title 5 which relates to nationality and citizenship[.]

. . . .

(b) Labor-management and employee relations of the Commission, other Executive agencies, and the Smithsonian Institution, their employees, and organizations of those employees, in connection with operations conducted in that area of the Republic of Panama which, on September 30, 1979, was the Canal Zone, shall be governed and regulated solely by the applicable laws, rules, and regulations of the United States.

The Judge found that "[t]he precise language used [in subsection b], as contrasted with the language of subsection (a)[,] merits close attention[.]" Id. at 4. The Judge noted that "subsection (b) makes an express distinction between Executive agencies and the Smithsonian." Id. at 4-5. The Judge found it significant that the distinction in subsection (b), as well as in other sections of title 22 discussed in his decision, "immediately follow[ed 22 U.S.C.] § 3641, the section assigning 'Executive agency' the meaning given in 5 U.S.C. § 105[.]" Id. at 5. Further, the Judge stated that the omission of the term "Smithsonian" from 22 U.S.C. § 3701(a), "which deals with the applicability of the [Statute], makes it even more difficult to avoid the conclusion that [Congress] made specific reference to the Smithsonian only where (1) such specific reference was deemed necessary and (2) Congress intended the Smithsonian to be covered." Id. Accordingly, based on his interpretation of the Panama Canal Act and his reliance on cases concerning statutory construction, the Judge found "compelling reason[s] for concluding that Congress did not consider the Smithsonian to be an 'agency' under the [Statute]." Id. at 6.

Noting the General Counsel's assertion that Congress did not enact the Panama Canal Act for the purpose of excluding the Smithsonian from the Statute, the Judge stated, nevertheless, that "the understanding of subsequent Congresses about an earlier statute is entitled to significant weight, 'and particularly so when the precise intent of the enacting Congress is obscure.'" Id. at 6-7 (quoting Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980) (emphasis in Judge's Decision). The Judge further stated that "exclusive reliance on the understanding of the Smithsonian's [status under the Statute] found in the [Panama] Canal Act is warranted where, as here, none of the other arguments presented [by the General Counsel as to the Smithsonian's status] are particularly persuasive." Id. at 7.

Consequently, the Judge found that the Smithsonian was not an "agency" within the meaning of section 7103(a)(3) of the Statute. Therefore, the Judge concluded, based on his interpretation of the terms "Executive agency" and "Smithsonian Institution" under the Panama Canal Act, that the Authority was precluded from asserting jurisdiction over the unfair labor practice complaint and recommended that it be dismissed. In view of this conclusion, the Judge found it unnecessary to reach the Respondents' contention that under 20 U.S.C. § 76k(c), the Kennedy Center's actions concerning labor relations matters are not subject to review by any agency.5/

III. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel asserts that the Judge erred "when he relied exclusively upon the Panama Canal Act" in determining that the Smithsonian, and thus, the Respondent Kennedy Center, is not an agency within the meaning of section 7103(a)(3) of the Statute. Exceptions at 4 (emphasis deleted). The General Counsel contends that the Panama Canal Act does not preclude the Authority from asserting jurisdiction over the Smithsonian and its bureau, the Kennedy Center.

The General Counsel asserts that the Judge's decision is erroneous because the "plain meaning" of the Panama Canal Act does not suggest that the intention of Congress in enacting that law, including particularly the labor-management relations section, 22 U.S.C. § 3701(a), was to set the jurisdictional bounds of the Statute with respect to the Smithsonian and the Kennedy Center. Id. at 6. The General Counsel claims that the "plain meaning of 22 U.S.C. § 3701(b) . . . clearly evinces the intent of Congress that labor-management and employee relations of 'the Commission, other Executive agencies, and the Smithsonian Institution . . . shall be governed and regulated solely by applicable laws, rules and regulations of the United States[,]'" and not by Panamanian law or any combination of the two. Id. at 7 (emphasis deleted). The General Counsel further asserts that the "specific statutory inferences drawn by the [Judge] with regard to the Panama Canal Act are far from clear and do not justify the 'compelling force' which [the Judge] ascribed to [provisions in the Panama Canal Act] in deciding the jurisdictional issue." Id. at 9-10.

In the General Counsel's view, the Judge "reaches well beyond the narrow and precise goals of the 'Labor-Management Relations' section of the . . . Act to delimit not only the application of the Statute to the Smithsonian's operations in the Canal Zone but to those outside the . . . Zone[.]" Id. at 11. The General Counsel asserts that such "judicial extrapolation" ignores the purpose of the labor-management relations section as well as the proviso in 22 U.S.C. § 3701(a) that "'nothing in this [c]hapter shall be construed to affect the applicability of [c]hapter 71 of Title 5.'" Id. The General Counsel further contends that the Judge's finding that the understanding of subsequent Congresses about an earlier statute is entitled to significant weight is "misplaced" where that "understanding is based merely upon inference and presumptions" that lead to "far-reaching results." Id. at 11 and 12.

The General Counsel argues that there is "persuasive authority for finding that the Kennedy Center is an 'agency' within the meaning of section 7103(a)(3)" of the Statute. Id. at 12 (emphasis deleted). The General Counsel notes that the term "Executive Agency" under section 7103(a)(3) is defined by 5 U.S.C. § 105, which includes the term "independent establishment," which is defined in 5 U.S.C. § 104. The General Counsel argues that the Respondent Kennedy Center is an "'Executive agency' either as an independent establishment or as part of the Smithsonian which has conclusively been found to be an independent establishment." Id. at 15. In support of this claim, the General Counsel states that the United States Court of Appeals for the District of Columbia Circuit has "held that the Smithsonian met the definition of a 'Federal agency' under the Federal Tort Claims Act [FTCA,]" 28 U.S.C. §§ 1346, 2671-80, which provides in relevant part that "'the term 'Federal agency' includes the Executive departments, the military departments, independent establishments of the United States, and corporations.'" Id. at 14 (citing Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 566 F.2d 289 (D.C. Cir. 1977) (Expeditions), cert. denied, 438 U.S. 915 (1978)). Further, the General Counsel notes that the Civil Service Commission (now the Office of Personnel Management), the Equal Employment Opportunity Commission (EEOC), and "other Federal agencies have concluded . . . that the Smithsonian Institution and the Kennedy Center were agencies within the Executive Branch for the purposes of various Federal statutes." Id. at 15 (referencing Case No. 89-3, 50 Fair Empl. Prac. Case (BNA) 1889 (June 27, 1989) (50 FEP 1889); Case No. 89-2, 50 Fair Empl. Prac. Case (BNA) 1881 (May 2, 1989) (50 FEP 1881); 45 Comp. Gen. 685 (1966)).

Noting that certifications of representation for appropriate units in the Smithsonian were issued under Executive Order No. 11491, the predecessor to the Statute, the General Counsel asserts that the Smithsonian has "acknowledged the jurisdiction of the Statute in the processing of unfair labor practice charges and representation petitions." Id. at 13. Further, noting the EEOC cases cited above, the General Counsel disputes the Kennedy Center's assertion that the "'no review'" language of 20 U.S.C. § 76(k)(c) precludes the Authority from asserting jurisdiction. Id. at 12.

The General Counsel also asserts that there are "policy considerations for finding that the employees of the Kennedy Center are covered under the Statute." Id. at 16. The General Counsel states that the National Labor Relations Board has "held since 1982 that the Kennedy Center is an instrumentality of the Federal Government" and has declined to assert jurisdiction over the Kennedy Center under the National Labor Relations Act (NLRA). Id. According to the General Counsel, the reading of the Statute advanced by the Kennedy Center "would result in the deprivation of significant rights and protections to employees who otherwise would be routinely protected . . . under the Statute." Id. at 17.

The General Counsel further asserts that the Judge erred when he refused to hold a hearing on the complaint. The General Counsel urges the Authority to direct the Judge to provide a complete record on the jurisdictional issue and the merits so a "subsequent reviewer will have all the evidence before it to make a reasoned and sound decision." Id. at 18 n.16.

B. Respondent Kennedy Center's Opposition

The Respondent Kennedy Center asserts that the Judge correctly dismissed the case on jurisdictional grounds and, therefore, the General Counsel's request for a hearing should be denied. According to the Kennedy Center, the Judge's reliance on the Panama Canal Act to support his determination "is proper and is supported by numerous other statutory provisions which establish that Congress does not consider the Smithsonian Institution and its bureaus to be 'Executive agencies.'" Kennedy Center's Opposition at 2.

The Kennedy Center disagrees with the General Counsel's contention that there is "persuasive authority for finding that the Kennedy Center is an 'agency' as that term is used in the Statute." Id. at 13 (emphasis deleted). According to the Kennedy Center, "[t]he fact that the Kennedy Center has been held to be a 'Federal agency' does not support the General Counsel's argument [that the Kennedy Center is an Executive agency] because the authorities cited by the General Counsel do not address the definition of 'Executive agency' in 5 U.S.C. § 105." Id. (emphasis deleted). The Kennedy Center asserts that the cases cited by the General Counsel hold only that the Smithsonian and the Kennedy Center are "'[F]ederal agencies' as defined by [the FTCA,] 28 U.S.C. § 2671, a holding that is not in contention[,]" and that the General Counsel does not "reconcile the difference between the statutory definitions of 'Executive agency' and '[F]ederal agency[.]'" Id. at 13 and 14. The Kennedy Center argues that the statutory reach of the FTCA "is far broader[, with respect to agencies covered,] than agencies within the executive branch[, as defined under 5 U.S.C. § 105]." Id. at 15.

Thus, according to the Kennedy Center, because the term "Federal agency" under 28 U.S.C. § 2671 reaches not only independent establishments in the executive branch but also independent establishments outside the executive branch, the General Counsel's contention that the Kennedy Center is an Executive agency because it is an independent establishment is "incorrect." Id. The Kennedy Center also contends that the General Counsel's reliance on an EEOC decision holding that the Kennedy Center is an Executive agency under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a), is "misplaced" because the EEOC opinion is "erroneous." Id. at 15-16. The Respondent further asserts that the United States Department of Justice (DOJ) and other agencies have determined that the Smithsonian is not an Executive agency under 5 U.S.C. § 105. In particular, the Respondent relies on an opinion of Deputy Assistant Attorney General Ulman dated February 19, 1976 (Ulman opinion) and a memorandum of the Office of Government Ethics (OGE) to the General Counsel of the Smithsonian dated April 13, 1979 (OGE memorandum).

The Kennedy Center also contends that "[t]here are substantial other grounds for sustaining the . . . Judge's decision." Id. at 2. In this regard, the Kennedy Center asserts that the "'no review'" language of 20 U.S.C. § 76k(c) "explicitly precludes the Authority from exercising jurisdiction over the Kennedy Center." Id. Further, the Kennedy Center contends that "the fact that the Kennedy Center is not covered by the [NLRA]" is not a reason for the Authority to assert jurisdiction over the Kennedy Center. Id. at 23.

C. Union's Opposition

The Union contends that the Panama Canal Act "establishes that the Smithsonian Institution is not an 'Executive [a]gency' within the meaning of [5 U.S.C. § 105] and is not, therefore, subject to the [Statute]." Union's Opposition at 3. According to the Union, in enacting the Panama Canal Act Congress "clearly distinguished the Smithsonian Institution from 'Executive agencies'" as defined in 5 U.S.C. § 105. Id. The Union contends that the Judge, "in applying the appropriate standards [of statutory construction], determined that the language of the Panama Canal Act was reflective of Congressional intent regarding the Smithsonian Institution's status under the [Statute]." Id. at 5. The Union asserts that the General Counsel's interpretation of the Panama Canal Act on the applicability of the Statute "twists the standards of plain meaning." Id. According to the Union, the General Counsel's interpretation "ignores the shared definition of 'Executive agency[,]' the parallel goals of balancing employee and [G]overnment-as-employer concerns, and the proximity in time of the [Panama Canal Act and the Statute]." Id.

The Union contends that the authority cited by the General Counsel "is neither persuasive nor appropriate for determining the Kennedy Center's status" under the Statute. Id. at 6 (emphasis omitted). The Union asserts that the General Counsel's contention that the Smithsonian "acquiesced" to proceedings under the Statute is not persuasive because the Smithsonian "cannot confer jurisdiction . . . where Congress has expressly denied it." Id. As to the General Counsel's reliance on Expeditions, the Union asserts that neither Expeditions nor the FTCA is dispositive of the Smithsonian's status under the Statute. The Union's arguments in this regard are similar to those of the Kennedy Center mentioned above.

IV. Analysis and Conclusions

The threshold issue presented in this case is whether the Kennedy Center, a bureau of the Smithsonian Institution, is an agency within the meaning of section 7103(a)(3) of the Statute. The resolution of this issue requires us to examine: (1) the statutes establishing the Kennedy Center and the Smithsonian; (2) section 7103(a)(3) of the Statute, the labor-management relations program preceding the Statute's enactment, and the relevance of the Panama Canal Act; and (3) the effect of 20 U.S.C. § 76k(c). We find, for the reasons discussed below, that the Kennedy Center is an agency within the meaning of section 7103(a)(3) of the Statute.


A. The Kennedy Center and the Smithsonian

The Smithsonian was created by an Act of Congress in 1846. 20 U.S.C. § 41. The Kennedy Center, originally known as the National Cultural Center, was established by Congress in 1958 as a bureau in the Smithsonian Institution. 20 U.S.C. § 76h. In addition to the Kennedy Center, other bureaus in the Smithsonian include the National Gallery of Art and the National Portrait Gallery. 20 U.S.C. §§ 72 and 75b.

The Kennedy Center is directed by a board of trustees (the Board). 20 U.S.C. § 76h(a). The trustees are required to report their operations annually to the Smithsonian and to Congress, including a detailed statement of all public and private monies received and disbursed. 20 U.S.C. § 76l(c); Yamada v. John F. Kennedy Center for the Performing Arts, Civil Action No. 84-0614, slip op. at 7 (D.D.C. Oct. 7, 1985) (memorandum opinion) (Yamada). The General Accounting Office reviews and audits the Kennedy Center's accounts. 20 U.S.C. § 76l(f). The Kennedy Center receives Federal appropriations for maintenance, repair, alteration, security, information and other services necessary for its non-performing art functions. 20 U.S.C. § 76l(e). The Civil Service Retirement Act, 5 U.S.C. § 8301 et seq., and a "multitude of other [F]ederal employee benefit programs[,]" including the Federal Employees' Group Life Insurance Act, 5 U.S.C. § 8701 et seq., and the Federal Employees' Health Benefits Act, 5 U.S.C. § 8901 et seq., apply to employees of the Kennedy Center. Yamada at 9 and n.7.

B. The Smithsonian Is an Executive Agency within the Meaning of Section 7103(a)(3) of the Statute

1. Section 7103(a)(3) of the Statute: Legislative History and Congressional Intent Concerning the Smithsonian

Under section 7103(a)(3) of the Statute, except for the entities specifically enumerated as excluded under that section, "agency" means an "Executive agency (including a nonappropriated fund instrumentality described in section 2105(c) of [title 5 of the United States Code] and the Veterans' Canteen Service, Veterans' Administration), the Library of Congress, and the Government Printing Office[.]" Under 5 U.S.C. § 105, "Executive agency" is defined as an Executive department, a Government corporation, or an independent establishment. Under 5 U.S.C. § 104, "independent establishment" means an establishment in the executive branch "which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment[.]" 5 U.S.C. § 104.

The term "agency" was also used under Executive Orders Nos. 10988 and 11491, the predecessors to the Statute, to define the scope of the application of those Executive Orders. Accordingly, it is useful to review labor-management policies under these Executive Orders.

Initially, we note that "Presidential policies governing relationships between employee organizations and agency management in the executive branch were established by Executive Order 10988 in January 1962."6/ Executive Order No. 10988 governed "agencies of the executive branch of the Government in all dealings with Federal employees and organizations representing such employees."7/ Section 1(a) of that Order further stated that "[t]he head of each executive department and agency (hereinafter referred to as 'agency') shall take such action, consistent with law, as may be required in order to assure that employees in the agency are apprised of the rights described in this section[.]"8/ Thus, under Executive Order No. 10988, the term "agency" applied to agencies in the executive branch of the Federal Government, except those exclusions, including the Federal Bureau of Investigation and the Central Intelligence Agency, listed in section 16 of that Order.

Under Executive Order No. 10988, approximately 900 Smithsonian employees were represented by unions holding exclusive recognition in the Smithsonian.9/ This number included employees in bargaining units at the National Gallery of Art. Additionally, under this Order labor-management agreements were in effect between the Smithsonian and various labor organizations.10/ In our view, these circumstances show that the Smithsonian considered itself an "agency" under Executive Order No. 10988.

Executive Order No. 10988 remained in effect until it was revoked by Executive Order No. 11491, which took effect on January 1, 1970. Executive Order No. 11491 "buil[t] upon the foundation of experience gained by the parties under Executive Order 10988[,]"11/ and continued to apply "to all employees and agencies in the executive branch," except those exclusions described in the Order.12/ Under Executive Order No. 11491, "agency" was defined to mean "an executive department, a Government corporation, and an independent establishment as defined in section 104 [of] title 5, United States Code[.]"13/ An examination of the practice under Executive Order No. 11491 shows that the term "agency" applied to the Smithsonian. For example, the number of employees of the Smithsonian represented by unions grew to over 1000.14/ Additionally, the Smithsonian was the subject of an unfair labor practice decision under the Order.15/

Executive Order No. 11491 was replaced by the Statute. Although the definitions of "agency" under Executive Order No. 11491 and section 7103(a)(3) of the Statute are worded differently, as relevant to the issue in this case the term's meaning under the Statute has the same scope as under Executive Order No. 11491, which built on policies established under Executive Order No. 10988.16/ In this regard, as previously mentioned, Executive Order No. 11491 defined "agency," in part, as an executive department, a Government corporation, and an independent establishment as defined in 5 U.S.C. § 104. Section 7103(a)(3) of the Statute defines "agency," in part, as an "Executive agency," which is defined in 5 U.S.C. § 105. "Executive agency" as defined in 5 U.S.C. § 105 means an Executive department, a Government corporation, and an independent establishment, which is defined in 5 U.S.C. § 104. Also, the Statute excludes agencies that were also excluded under the Executive Orders.17/

Congress was aware of the policies, including the application of the term "agency," that evolved under Executive Orders Nos. 10988 and 11491 when it considered the proposed labor-management relations legislation that led to the enactment of the Statute. In this regard, the legislative history reflects that the House Committee on Post Office and Civil Service (Committee) considered legislation proposed by President Carter which was "essentially the codification of the existing Executive Order No. 11491 . . . ."18/ Further, in describing what is now the Statute, the Committee stated that "Title VII . . . establishes a statutory basis for labor-management relations in the Federal service. Since 1962, Executive orders have governed the collective bargaining relationship in the Federal sector. Title VII would . . . enact into law the rights and obligations of the parties to this relationship--employees, agencies, and labor organizations."19/

The report of the Senate Governmental Affairs Committee accompanying Senate bill S. 2640, which became the Civil Service Reform Act of 1978 (CSRA), also shows that Congress considered the application of the term "agency" under Executive Order No. 11491. In particular, the Senate Governmental Affairs Committee explained the use of the term "agency" in that bill, which was defined, in part, as an "Executive agency."20/ The Senate Governmental Affairs Committee stated:

Subsection (b) provides that this subchapter [title VII] applies to all employees and agencies in the executive branch except for specific exclusions set forth below. This subsection tracks the language of Executive Order 11491, section 3(a).

Subsection (c) specifies the agencies, subdivisions thereof and personnel to which [title VII] does not apply. It reflects current exclusions under Executive Order 11491. For the purpose of clarity, the National Security Agency, the U.S. Postal Service and the personnel of the Authority, General Counsel and [the Federal Service Impasses] Panel are specifically listed as excluded. . . .

Subsection (d) provides that an agency head may, as deemed in the national interest, suspend this subchapter with respect to an agency or subdivision located outside the U.S. It tracks the provision of Executive Order 11491, section 3(c).

Subsection (e) provides that employees engaged in administering a labor-management relations law (except for personnel of the Authority, General Counsel and Panel, who are excluded by subsection (c) of this section) may not be represented by labor organizations which also represent other employees covered by that law. A similar provision is contained in Executive Order 11491, section (3)(d) . . . .21/

The language in S. 2640 was changed by substitute language recommended by the Conference Committee. However, the substitute language, in particular, now section 7103(a)(3) of the Statute, continued to define "agency," in relevant part, as an "Executive agency" and, except for the U.S. Postal Service, listed similar exclusions as described in the Senate Report.

Thus, the legislative history shows that the policies developed under Executive Orders Nos. 10988 and 11491 were considered by Congress when it enacted the Statute. As demonstrated above, the Smithsonian was included within the scope of the Federal labor-management program under the Executive Orders that preceded the enactment of the Statute. Thus, had Congress intended to exclude the Smithsonian from the definition of "agency" under the Statute, it could have incorporated language excluding the Smithsonian, as it did for the agencies listed, to accomplish this purpose.

In light of the legislative history and the practice under Executive Orders Nos. 11491 and 10988 respecting the application of the term "agency," it is our view that Congress intended the term "agency" under section 7103(a)(3) of the Statute to apply in the same manner as under Executive Orders Nos. 11491 and 10988, except where Congress specifically included agencies not covered under the Executive Orders. Accordingly, we disagree with the Judge's statement that, in enacting the Statute, Congress' intent with respect to the status of the Smithsonian was "'obscure.'" Judge's Decision at 7. Rather, in our view, Congress considered the policies under the Executive Orders when it enacted the Statute, and by not specifically excluding the Smithsonian from the definition of agency under section 7103(a)(3) of the Statute, Congress demonstrated its intent to continue in effect the application of the Federal labor-management program to employees of the Smithsonian that had been in place under the Executive Orders. In this regard, we note particularly that the term "agency" is defined in both Executive Order No. 11491 and the Statute to include an "independent establishment" under 5 U.S.C. § 104. We also note that under the Statute the Federal labor-management relations program has been applied to the National Gallery of Art, one of the bureaus of the Smithsonian. See, for example, National Gallery of Art and American Federation of Government Employees, Local 1831, 39 FLRA 226 (1991) (National Gallery of Art II); Smithsonian Institution, National Gallery of Art, Washington, D.C. and American Federation of Government Employees, Local 1831, 36 FLRA 428 (1990) (Smithsonian Institution); National Gallery of Art and American Federation of Government Employees, Local 1831, 33 FLRA 859 (1989) (National Gallery of Art I).

We further note that our determination that the Smithsonian is an Executive agency and, thus, within the coverage of the Statute is consistent with decisions of other agencies charged with administering laws governing Federal employees and employment-related matters. For example, in EEOC Case No. 89-2, 50 FEP 1881, the Kennedy Center challenged the EEOC's jurisdiction in a case where four employees alleged violations of the Civil Rights Act. The Kennedy Center claimed that it was outside the coverage of the Civil Rights Act. The EEOC rejected this contention and found that the Kennedy Center is an executive agency within the meaning of section 717(a) of the Civil Rights Act, and as such, is within the coverage of that law. Section 717(a) of the Civil Rights Act incorporates by reference the definition of "Executive agency" found at 5 U.S.C. § 105, the same section that defines executive agency and is referred to in section 7103(a)(3) of the Statute. In EEOC Case No. 89-3, 50 FEP 1889, where an employee alleged violations of the Civil Rights Act, the Smithsonian argued that the EEOC lacked jurisdiction over the charge because it was neither a private sector employer nor an arm of any branch of government. The EEOC, relying on its decision in EEOC Case No. 89-2, rejected the Smithsonian's arguments and held that the Smithsonian is an Executive agency within the meaning of section 717(a) of the Civil Rights Act and, therefore, within the coverage of that law.

Further, the Merit Systems Protection Board (MSPB), which under the CSRA ensures that all Federal Government agencies follow merit systems practices, has decided cases involving the Smithsonian. See, for example, Clemons v. Smithsonian Institution, 50 MSPR 74 (1991) (where the MSPB found the Smithsonian in noncompliance with a Board order); Butler v. Smithsonian Institution, 10 MSPR 644 (1982).

Additionally, we reject the Kennedy Center's contention that the DOJ's Ulman opinion supports its position that the Smithsonian is not an Executive agency. In that opinion, the DOJ considered the status of the Smithsonian under certain laws not involved in this case and stated that the Smithsonian [under those laws] "cannot be viewed as an establishment within the Executive branch of [G]overnment." Ulman opinion at 10. Subsequently, the DOJ was requested to consider the status of the Smithsonian under another law, the Federal Property and Administrative Services Act (Property Act), 40 U.S.C. § 471-544. See Kennedy Center's Opposition, Appendix D, Memorandum for Clyde C. Pearce, Jr., General Counsel, General Services Administration (GSA), dated June 30, 1988 (Pearce memorandum). In that opinion the DOJ noted that the GSA considered the Smithsonian as an independent establishment in the executive branch and, thus, an Executive agency, while the Smithsonian considered itself to be a Federal agency but not an Executive agency. The DOJ concluded that, for purposes of the Property Act, the "Smithsonian Institution is an 'independent establishment in the executive branch" and, therefore, an Executive agency within the meaning of the Property Act. Pearce memorandum at 7. In reaching this conclusion, the DOJ noted the Ulman opinion, and stated that the "unique nature of the Smithsonian counsels in favor of determining the status of the Smithsonian on a statute-by-statute basis." Pearce memorandum at 1. In light of the Pearce memorandum, we find that the Ulman opinion does not provide any basis for us to conclude that the Smithsonian is not an Executive agency within the meaning of the Statute because the Ulman opinion did not consider the Statute.

We also find that the OGE memorandum does not provide a basis for us to conclude that the Smithsonian is not an Executive agency within the meaning of the Statute. This memorandum concerned the application of the Ethics in Government Act, Public Law 95-521, to the Smithsonian. In this memorandum, the Director of the Office of Government Ethics relied on the Ulman opinion to find that the Ethics in Government Act was not applicable to the Smithsonian. In view of our determination concerning the Ulman opinion, we find, for similar reasons, that the OGE memorandum is not determinative of whether the Smithsonian is an Executive agency under the Statute because the OGE did not consider the Statute.

Based on the above, we conclude that under the Statute, the Smithsonian is an agency within the meaning of section 7103(a)(3). We next examine whether the Panama Canal Act deprives the Authority of its jurisdiction over the Smithsonian conferred by the Statute.

2. The Panama Canal Act Does Not Deprive the

Authority of its Jurisdiction over the Smithsonian Conferred by the Statute

The purpose of the Panama Canal Act is to "provide legislation necessary or desirable for the implementation of the Panama Canal Treaty of 1977 between the United States of America and the Republic of Panama and of the related agreements accompanying that Treaty." 22 U.S.C. § 3601. Section 3701 of the Panama Canal Act, 22 U.S.C. § 3701, concerns labor-management relations matters applicable to Government agencies in the Panama Canal Zone. The Judge found, based on his interpretation of the terms "Smithsonian" and "Executive Agency" in 22 U.S.C. § 3701 and certain other provisions of the Panama Canal Act, that compelling reasons existed for concluding that Congress did not intend for section 7103(a)(3) of the Statute to cover the Smithsonian. Based on his review of the Panama Canal Act, the Judge found that the Smithsonian was not an agency within the meaning of section 7103(a)(3) of the Statute. We disagree.

The labor-management section of the Panama Canal Act pertains only to U.S. Government agencies operating in the Panama Canal Zone and, therefore, is not dispositive in interpreting the Statute. See, for example, Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 356 (1986) (the Authority found that the legislative history of the Foreign Service Act was not dispositive in interpreting the Statute). As we noted above, the practice under Executive Orders Nos. 11491 and 10988 shows that the term "agency," under these Orders, applied to the Smithsonian. Congress considered the Federal labor-management policies under these Executive Orders when it enacted the Statute and did not specifically exclude the Smithsonian from the definition of agency under section 7103(a)(3) of the Statute. Further, we find nothing in the Panama Canal Act which would lead us to conclude that the policies established under the Executive Orders should no longer be followed. In other words, we find nothing in the Act which would lead us to conclude that the Smithsonian is not an agency within the meaning of section 7103(a)(3) of the Statute.

In our view, the plain wording of 22 U.S.C. § 3701(a) specifically extends the coverage of the Statute to Government agencies operating in the Canal Zone on September 30, 1979, and specifically states that "[n]othing" in that chapter shall affect the applicability of the Statute to such agencies. 22 U.S.C. § 3701(b) amplifies that section by emphasizing that only U.S. laws, rules, and regulations are applicable to these agencies. Thus, as we interpret 22 U.S.C. § 3701(b), this section does not exclude the Smithsonian from the coverage of the Statute. Our interpretation of 22 U.S.C. § 3701 is supported by the legislative history of the Panama Canal Act. In this regard, we note the Committee on Merchant Marine and Fisheries Report on the legislation which eventually became the Panama Canal Act. In particular, we note section 225, addressed in that Report, which is almost identical to that which appears in section 1271 of the Act, 22 U.S.C. § 3701. With respect to section 225, the Committee stated:

 

Subchapter VII--Labor-Management Relations

 

Section 225. Labor-Management Relations.--

Paragraph(a) of this section makes the provisions of 5 U.S.C., chapter 71 applicable to all Government agencies in the area now comprising the Canal Zone[.]

Paragraph(b) of section 225 provides that labor-management and employee relations of the Commission and other U.S. Government agencies shall be governed exclusively by U.S. laws and regulations.

H.R. Rep. No. 98, 96th Cong. 59-60 (1979), reprinted in 1979 U.S. Code Cong. and Ad. News 1062.

We also note statements made during discussion on the floor of the House of Representatives regarding a provision in H.R. 111, section 225, which was identical to that which appears as section 1271 of the Act, 22 U.S.C. § 3701. For example, Representative Murphy, the Chairman of the Merchant Marine Committee, stated:

A final provision of the bill of considerable importance in the management of the Canal is section 225 extending to all U.S. Government agencies in the area now comprising the Canal Zone, the labor-management relations law applicable to Government agencies generally.

125 Cong. Rec. H11955 (daily ed. May 21, 1979). Representative Spellman also stated:

If we were not to enact this legislation, if we were not to impose it, just consider what would happen where Panama Canal employees are concerned. If we just look at that alone we will understand the need for controlling legislation for we would find they would come under the jurisdiction of Panama Canal labor law and we would have Federal employees with the right to strike.

125 Cong. Rec. H11978 (daily ed. May 21, 1979).

Based on the legislative history previously mentioned and the wording of 22 U.S.C. § 3701, it is our view that the Panama Canal Act does not provide a basis for us to conclude that the Smithsonian, a Federal agency that was operating in the Canal Zone during the relevant time mentioned in the Panama Canal Act, is not an "Executive agency" within the meaning of section 7103(a)(3) of the Statute. Consequently, we conclude that the Panama Canal Act does not deprive the Authority of its jurisdiction over the Smithsonian conferred by the Statute.

C. 20 U.S.C. § 76k(c) Does Not Deprive the

Authority of Its Jurisdiction over the Smithsonian Conferred by the Statute

The Kennedy Center argues that even if the Authority determines that the Smithsonian is an Executive agency under the Statute, the Authority would still be precluded from asserting jurisdiction because of 20 U.S.C. § 76k(c), which provides that "[t]he actions of the Board [of Trustees] . . . shall not be subject to review by any officer or agency other than a court of law." 20 U.S.C. § 76k(c). We disagree.

In EEOC Case No. 89-2, the EEOC was faced with a question of whether this section precluded it from asserting jurisdiction over the Kennedy Center. The EEOC, noting that "statutes in apparent conflict should be reconciled where possible, particularly where they have different purposes and deal with entirely different subject matter[,]" found that the Kennedy Center Act and the Civil Rights Act were two such statutes and, thus, should be construed to give effect to the Congressional intent in enacting each. EEOC Case No. 89-2, 50 FEP at 1887 (citing, among others, Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971)). The EEOC then examined the language of 20 U.S.C. § 76k(c) and its legislative history and found that 20 U.S.C. § 76k(c) did not preclude the EEOC from asserting jurisdiction in the case before it.

In this case, we find, like the EEOC, that 20 U.S.C. § 76k(c) and the Statute, two statutes that have different purposes and deal with different subject matters, should be construed to give effect to the Congressional intent in enacting each. Because the language in 20 U.S.C. § 76k(c) is virtually identical to section 74(d) of the National Gallery of Art legislation, 20 U.S.C. § 74(d), we think it appropriate to examine the legislative history of both bureaus to understand Congress' intention concerning 20 U.S.C. § 76k(c).

We note that in House debates on a bill that ultimately became the National Cultural Center Act (now the Kennedy Center Act), Congressman Thompson explained that the language of 20 U.S.C. § 76k(c) was "standard language[]" where trustees of a board were charged with operating a Federal entity. 104 Cong. Rec. 19192 (1958). We also note that language similar to the language in 20 U.S.C. § 76k(c) is found in the National Gallery of Art's enabling legislation, 20 U.S.C. § 74(d), which served as a model for the Kennedy Center Act. See 104 Cong. Rec. 19188 (1958) (where reference is made to "Mellon Gallery's creation[]," later referred to as the National Gallery of Art). As noted above, the National Gallery of Art, a bureau of the Smithsonian, had units of recognition under Executive Orders Nos. 11491 and 10988 and is subject to the Statute. See, for example, National Gallery of Art I; Smithsonian; National Gallery of Art II.

The National Gallery of Art legislation indicates that the Board established under that legislation was constructed to meet the condition of the donor that "for the purposes of safeguarding the high standard of quality of future acquisitions of the collection and to insure the efficient administration of the proposed [National Gallery of Art]," the Gallery "would be mingled as little as possible with the affairs of the [Smithsonian] Institution or with the affairs of the Government." 81 Cong. Rec. 2209 (1937) (remarks of Senator Connally quoting a letter from Mr. Mellon). The Board established under the National Gallery of Art legislation is authorized to appoint a director, assistant director, secretary, a chief curator, and "such other officers and employees . . . as may be necessary for the efficient administration of functions of the board." 20 U.S.C. § 74(c). The legislative history of the legislation establishing the National Gallery of Art indicates that Congress intended that although the appointment of the four named positions should be made by the Board and should be free of Governmental influence, the selection of other employees was to be handled in the normal course of Government business. See discussion between Senators McAdoo and Black, 81 Cong. Rec. 2225 (1937).

As to the Kennedy Center Act, those opposed to using the same "non-reviewable" language in the Kennedy Center legislation, as was used in the National Gallery of Art legislation, were concerned that the Board created under this legislation would be able to "buy land, presumably contract debts and perhaps even float revenue bond issues to augment the monetary gifts it received" and "[n]o one except the courts [could] review [the Board's] actions." 104 Cong. Rec. 19190 (1958). Those in favor of the legislation defended the language and responded that it was "standard language[,]" and that the trustees of the Board were "fiduciaries" and as such, were subject to the control of the "laws of the Federal Government." 104 Cong. Rec. 19192 (1958). The Kennedy Center Act also authorizes the Board, like the Board for the National Gallery of Art, to appoint a director, an assistant director and a secretary and "such other officers and employees . . . as may be necessary for the efficient administration of the functions of the Board." 20 U.S.C. § 76k(b). In view of the legislative history of the Kennedy Center Act and the National Gallery of Art legislation, we agree with the EEOC that 20 U.S.C. § 76k(c) was intended "for purposes . . . unrelated to personnel matters[.]" EEOC Case No. 89-2, 50 FEP at 1888 (footnote omitted). Therefore, we conclude that 20 U.S.C. § 76k(c) does not apply to the issues raised in this case.


V. Conclusion

Based on the above, we conclude that the Smithsonian is an Executive agency within the meaning of section 7103(a)(3) of the Statute and, therefore, we have jurisdiction to decide the unfair labor practice complaint involving the Kennedy Center, a bureau of the Smithsonian. As the Judge did not address the merits of the case, but ruled only on the jurisdictional issue, we will remand this case to the Chief Administrative Law Judge for further processing of this unfair labor practice complaint on the merits. On remand, the Chief Administrative Law Judge may determine the appropriate action to address the merits of the case. As we are remanding this case to the Chief Administrative Law Judge, we find it unnecessary to rule on the General Counsel's request that the Judge be directed to hold a hearing on the merits.

VI. Order

The complaint in this case is remanded to the Chief Administrative Law Judge for action consistent with this decision.

__________________________

FOOTNOTES

1/ Section 7103(a)(3) of the Statute states that "[f]or the purpose of this chapter[,]" the term "agency" means:

an Executive agency (including a nonappropriated fund instrumentality described in section 2105(c) of this title and the Veterans' Canteen Service, Veterans' Administration), the Library of Congress, and the Government Printing Office, but does not include--

(A) the General Accounting Office;

(B) the Federal Bureau of Investigation;

(C) the Central Intelligence Agency;

(D) the National Security Agency;

(E) the Tennessee Valley Authority;

(F) the Federal Labor Relations Authority; or

(G) the Federal Service Impasses Panel[.]

2/ The Judge who ruled on the motions in this case is on detail to the Federal Service Impasses Panel.

3/ 5 U.S.C. § 105 provides: "For the purpose of this title, 'Executive agency' means an Executive department, a Government corporation, and an independent establishment."

4/ 5 U.S.C. § 104 provides: "For the purpose of this title, 'independent establishment' means--(1) an establishment in the executive branch (other than the United States Postal Service or the Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment; and (2) the General Accounting Office."

5/ 20 U.S.C. § 76k(c) provides:

    (c) Judicial Review

The actions of the [Kennedy Center's] Board [of Trustees], including any payment made or directed to be made by it from any trust funds, shall not be subject to review by any officer or agency other than a court of law.

6/ "Study Committee Report and Recommendations, August 1969, Which Led to the Issuance of Executive Order 11491," ("Study Committee Report") reprinted in Legislative History of the Federal Service Labor-Management Relations Statute (Legis. Hist.) at 1218 (1979).

7/ Preamble, Executive Order 10988, reprinted in Legis. Hist. at 1211.

8/ Section 1(a), Executive Order 10988, reprinted in Legis. Hist. at 1211.

9/ See Office of Labor-Management Relations, U.S. Civil Service Commission, Union Recognition in the Federal Government at 372 (November 1969).

10/ Id.

11/ "Study Committee Report," reprinted in Legis. Hist. at 1220.

12/ Section 3, Executive Order No. 11491, reprinted in Legis. Hist. at 1245 and 1341. Although the Order was subsequently amended, the amendments did not change the definition of agency. However, the Tennessee Valley Authority, which had been covered by the Order, was excluded from its coverage in 1976 by Executive Order No. 11901.

13/ Section 2(a), Executive Order 11491, reprinted in Legis. Hist. at 1244.

14/ See Office of Labor-Management Relations, U.S. Civil Service Commission, Union Recognition in the Federal Government at 541 (November 1976); Smithsonian Institution, A/SLMR No. 1019, 8 A/SLMR 368 (1978). See also, Certifications of Representative for the Smithsonian issued under Executive Order No. 11491, General Counsel's Exceptions at 13 (referencing Attachment B, General Counsel's Motion of September 19, 1991).

15/ See Smithsonian Institution, National Zoological Park, 8 A/SLMR 233 (1978).

16/ Under the Statute, certifications of representation have been issued by the Regional Director of the Washington Regional Office of the Authority for bargaining units in the Smithsonian. See Certifications for the Smithsonian and National Gallery of Art issued under the Statute, General Counsel's Exceptions at 13 (referencing Attachment B, General Counsel's Motion of September 19, 1991).</