File 2: Opinion of Chair Segal
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Phyllis N. Segal, Chair, concurring:
I write separately to explain why I reject the Respondent's contention that the Authority should reverse its precedent, which has been affirmed on judicial review, holding that an agency's statutory obligation to provide information to a union extends to the entire collective bargaining process, including the administration of agreements.
Section 7114(b)(4) of the Statute requires that an agency furnish an exclusive representative with "data . . . necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." In its most explicit analysis of the scope of this section, the United States Court of Appeals for the District of Columbia Circuit held that it is "perfectly consistent with the well-understood principle that . . . [t]he duty to request and supply information is part and parcel of the fundamental duty to bargain." American Federation of Government Employees, Local 1345, AFL-CIO v. FLRA, 793 F.2d 1360, 1363 (D.C. Cir. 1986) (Local 1345) (citations omitted). The court held also that "this obligation applies not only to information needed to negotiate an agreement, but also to data relevant to its administration." Id. (citing National Labor Relations Board v. Acme Industrial Co., 385 U.S. 432, 435-36 (1967); NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 153 (1956); additional citations omitted). Stating that a union's right to information applies to the "full range of union responsibilities[,]" the court interpreted information rights under the Statute as being similar in scope to such rights as they exist in the private and non-federal public sectors. Id. at 1364 (emphasis in original).
Union information rights encompassed the full range of a union's representational responsibilities under Executive Order 11491, as amended, which provided the framework for labor-management relations in the federal sector prior to the enactment of the Statute in 1978. See Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA 619, 624 (1980); Department of Health, Education and Welfare, Social Security Administration, Kansas City Payment Center, Bureau of Retirement and Survivors Insurance, A/SLMR No. 411, 4 A/SLMR 467, 472 (1974). As with the private and non-federal public sector rights discussed by the court in Local 1345, the information rights recognized under the Executive Order were construed as a necessary component of a union's right to act for, and negotiate agreements covering, all employees in the bargaining unit for which it is certified as exclusive representative. Id. (citing Executive Order 11491, section 10(e)). [ v55 p263 ]
The Respondent asserts that section 7114(b)(4) of the Statute limits a union's right to information to the "context of the duty to negotiate in good faith . . . ." Exceptions at 8. The Respondent reads the phrase "discussion, understanding, and negotiation of subjects within the scope of collective bargaining" in section 7114(b)(4) as referring only to contract negotiations. Thus, in the Respondent's view, section 7114(b)(4) effectively eliminated the union's right under the Executive Order to information for other aspects of the collective bargaining relationship, such as contract administration.
Specifically, the Respondent asserts that the structure and text of section 7114(b)(4) demonstrate that the right to information is limited to contract negotiations. At the heart of this argument is Respondent's contention that the terms "discussion, understanding, and negotiation" are used in the "conjunctive." Exceptions at 15. Citing 1A Sutherland's Statutory Construction, § 21.14 (5th ed. 1993), Respondent argues that the use of "and" indicates that "all [of these] requirements" must be present for information to be disclosed and that "as written, it is clear that there must be a showing that the information is necessary for discussion and understanding and negotiation of a subject . . . before the agency is obligated to provide it." [n1] Exceptions at 15 (emphasis added).
The Respondent's invocation of the rules of statutory construction fails to fully state the principle it cites: the same paragraph in Sutherland relied on by the Respondent explains that "[t]here has been . . . so great laxity in the use of these terms that courts have generally said that the words ["or" and "and"] are interchangeable and that one may be substituted for the other, if consistent with the legislative intent." Id. The Respondent's focus on the term "and" ignores the intent suggested by the context in which the term appears. A careful reading of section 7114(b)(4), in context, indicates that the Respondent's construction of "discussion, understanding, and negotiation" is not warranted.
I begin with the premise that the terms "discussion," "understanding," and "negotiation" describe distinct activities in connection with which information must be furnished. See United States v. Menasche, 348 U.S. 528, 538-39 (1955) ("It is our duty `to give effect, if possible, to every clause and word of a statute[.]'") (citations omitted). Reading the terms in the conjunctive posits that at the time information is requested, the information must be necessary for each and every one of the three activities. The Respondent emphasizes that "negotiation" must always be present. However, the same interpretation would require that "discussion" and "understanding," as analytically distinct concepts, also be present to obligate an agency to furnish information to a requesting union. That is, the Respondent's interpretation would require us to find that "negotiation" does not inherently encompass "discussion" and "understanding." Yet, it is difficult to discern how information could be necessary for "negotiation" but not necessary for "understanding." Perhaps negotiation where both parties fully understand the subject at hand would fall into this category. In that situation, however, it is unclear how information would be "necessary," within the meaning of section 7114(b)(4). Similarly, while "discussion" surely can take place without "negotiation," the opposite is not true: it is difficult to discern how "negotiation" can take place without "discussion."
In short, Respondent posits a construction of section 7114(b)(4) that either requires the Authority to read the terms "understanding" and "discussion" in ways contrary to their common meaning, or runs afoul of the principle that a statute should be construed so that no part will be "inoperative or superfluous." American Federation of Government Employees, Local 2419, 53 FLRA 835, 842 n.10 (1997) (quoting 2A Sutherland, § 46.06 (rev. 5th ed. 1992)). Both of these difficulties are avoided by construing "discussion, understanding and negotiation" to mean that each term describes a separate activity for which access to information is appropriate. This is, in my view, the more natural reading of what Congress has written.
The Respondent also argues that the Authority has improperly interpreted the reference in section 7114(b)(4) to "subjects within the scope of collective bargaining." The Authority has held that this phrase embraces the entire collective bargaining process, which includes the administration of contracts. National Labor Relations Board, 38 FLRA 506, 519-20 (1990). According to the Respondent, the Authority's interpretation ignores the statutory definition of the term "collective bargaining," in section 7103(a)(12) of the Statute, which, the Respondent argues, refers only to the negotiation of a collective bargaining agreement.
There are several defects in the Respondent's interpretation of this statutory wording. In singling out the term "collective bargaining," the Respondent ignores the fact that the phrase "scope of collective bargaining" does not stand alone; the phrase serves, in the [ v55 p264 ] context in which it appears, to describe the term "subjects." Section 7114(b)(4) states that information must be provided for "negotiation of subjects within the scope of collective bargaining." The section does not state that information must be provided for the "negotiation of a collective bargaining agreement." By way of contrast, when Congress wished to refer to the activity of negotiating a collective bargaining agreement, it did so clearly. See, e.g., section 7114(a)(1) ("negotiate collective bargaining agreements"); section 7114(a)(4) ("negotiate in good faith for the purpose of arriving at a collective bargaining agreement"). Respondent's contention that section 7114(b)(4) should be construed to include only the negotiation of collective bargaining agreements effectively reads the term "subjects" out of the provision entirely. As explained above, this is contrary to basic rules of statutory construction.
Finally, Respondent's reliance on the definition of collective bargaining in section 7103(a)(12) ignores the judicial and administrative interpretations, cited above, that found broad information rights to be derived from a union's right and obligation to represent employees: the "fundamental duty to bargain." Local 1345, 793 F.2d at 1364 (citing private and non-federal public sector precedent). The duty to bargain is stated in virtually identical terms in the Executive Order and the Statute. Compare 5 U.S.C. 7114(a) with Executive Order 11491, sec. 10(a). In enacting the Statute, Congress is presumed to have been aware of the wording of the Executive Order and existing interpretations of that wording. See U.S. Department of Justice, 52 FLRA 1093, 1099 (1997); Department of the Air Force, Headquarters Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 24 FLRA 187, 190 (1986). Further, in enacting the Statute, Congress indicated that it expected continuity of administration from the Executive Order to the Statute, providing that policies established under the Executive Order would remain in effect "unless superseded by specific provisions of this chapter or by regulations or decisions issued pursuant to this chapter." 5 U.S.C. 7135(b).
I am not persuaded by the Respondent's arguments that Congress, in including section 7114(b)(4) in the Statute, intended to modify the then-longstanding principle of broad information rights so as to drastically restrict the information available to federal unions compared to the information available under the Executive Order and in the private and non-federal public sectors. Instead, an examination of the Executive Order and the Statute show that, without altering the wording of the provisions that had been found under the Executive Order to imply a broad right to information, Congress merely added a specific reference to union information rights in section 7114(b)(4).
In this regard, as the Respondent notes, the legislative history of section 7114(b)(4) is "sparse." Exceptions at 17. The Respondent argues that inclusion of the term "negotiation," in the few legislative history references to this section, reflects Congressional intent that the obligation to provide information arises only in the context of negotiating a collective bargaining agreement. Id. A close reading of these references, however, makes apparent that they do not shed particular light on whether information can be necessary for "discussion" or "understanding" in the absence of contract negotiations. Specifically, they provide no insight into Congress' intent in including the terms "discussion" and "understanding" in section 7114(b)(4).
Resolving Respondent's arguments requires interpreting the Statute only, because there is no assertion that any other laws have an effect on Respondent's obligations. Compare United States Department of Defense v. FLRA, 510 U.S. 487, 495, 503 (1994) (DOD) (the application of a "somewhat convoluted path of statutory cross-references" to other federal information statutes resulted in more limited information rights for federal employee unions than those in the private sector). In interpreting the Statute, I am guided by Justice Ginsburg's observation in DOD that, in enacting the Statute, "Congress unquestionably intended to strengthen the position of federal unions" and thus "[i]t is surely doubtful that, in the very statute bolstering federal-sector unions, Congress aimed to deny those unions information their private-sector counterparts routinely receive." Id. at 506 (Ginsburg, J. concurring) (citations omitted).
In sum, for the reasons described above, I reject the Respondent's arguments that the Authority and the courts have misconstrued section 7114(b)(4) as applying to matters other than the negotiation of collective bargaining agree