United States, Department of the Interior, Bureau of Indian Affairs, Southwestern Indian Polytechnic, Institute, Albuquerque, New Mexico (Respondent) and Indian Educators Federation, Local 4524 (Charging Party)

[ v58 p246 ]

58 FLRA No. 60

UNITED STATES
DEPARTMENT OFTHE INTERIOR,
BUREAU OF INDIAN AFFAIRS
SOUTHWESTERN INDIAN POLYTECHNIC
INSTITUTE, ALBUQUERQUE, NEW MEXICO
(Respondent)

and

INDIAN EDUCATORS FEDERATION
LOCAL 4524
(Charging Party)

DA-CA-01-0120

_____

DECISION AND ORDER

December 23, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel (GC). The Respondent filed an opposition to the GC's exceptions.

      The Judge concluded that the Respondent did not violate section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a demonstration project encompassing a new personnel system without providing the Charging Party an opportunity to bargain prior to implementation.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision.

II.     Background and Judge's Decision

      On October 31, 1998, the Haskell Indian Nations University and Southwestern Indian Polytechnic Institute Administrative Systems Act of 1998 (the Act), 25 U.S.C. § 3731 (note), was enacted, providing the Respondent with authority to conduct demonstration projects "in accordance with the provisions of the [ v58 p247 ] Act." [n1] Such demonstration projects were required to be initiated by October 31, 2000 and, with some exceptions, to be terminated no later than 5 years after initiation.

      In May 2000, the Bureau of Indian Affairs published a notice in the Federal Register stating that the Respondent was developing a demonstration project encompassing an alternative personnel system (hereinafter the demonstration project). Notice of the final demonstration project was published in the Federal Register in September 2000. The final notice stated, in relevant part, that:

(b) The personnel system is in the excepted service and addresses the areas of classification, staffing, pay, performance, discipline, and separation. Other areas of personnel such as leave, retirement, life insurance, health benefits, thrift savings, etc., remain under the jurisdiction of the Office of Personnel Management.

65 Fed. Reg. 58181, 58183 (September 27, 2000).

      By letter dated October 24, 2000, the Respondent notified the Charging Party that the demonstration project would be implemented on October 29, and invited the Charging Party to submit "proposals or concerns, if any, regarding the impact and implementation" of the demonstration project. Jt. Exh. 3. The demonstration project was implemented on October 29. The Charging Party received the notification on October 30 and, on October 31, submitted proposals for bargaining on the demonstration project, which, according to the Respondent, lacked specificity. The Charging Party did not submit further proposals, and the parties did not bargain.

      The GC issued a complaint alleging that the Respondent violated § 7116(a)(1) and (5) of the Statute by implementing the demonstration project without providing the Charging Party an opportunity to bargain. Before the Judge, the Respondent claimed, among other things, that it was not obligated to bargain over the project prior to its implementation because it had sole and exclusive discretion under the Act to determine whether to bargain. The Judge agreed with the Respondent, finding that the terms of the Act, as well as its context and legislative history, supported a conclusion that the Respondent had sole and exclusive discretion to determine whether to bargain over the demonstration project prior to its implementation.

      As for the terms of the Act, the Judge examined wording in § 4(a), (b), and (c). With regard to § 4(a), the Judge found that introductory wording in that subsection providing that the conduct of demonstration projects may not be limited by lack of specific authority in title 5 or by inconsistent provisions in that title indicates "intent, in the broadest language possible, to exempt [the Respondent] from title 5." Judge's Decision at 14. The Judge also relied on § 4(a)(7), which states that implementation of demonstration projects is exempt from provisions in title 5 governing "the methods of involving . . . labor organizations . . . in personnel decisions." Id. The Judge found that subsection (b) provided "further indication that [the Respondent] had no obligation to negotiate . . . or even to `consult' the [Charging Party]," unless the Respondent deemed it "appropriate." Id. As for subsection (c), which provides that a demonstration project may not include a duty to bargain over compensation or classification of positions and may not require employees to pay dues to a labor organization, the Judge stated that because the matters set forth in that subsection duplicate provisions in the Statute, they would be unnecessary if demonstration projects were subject to the Statute.

      Consistent with the foregoing, the Judge concluded that the terms of § 4 (a), (b), and (c) of the Act supported a conclusion that the Respondent had sole and exclusive discretion to determine whether to bargain with the Charging Party prior to implementing the demonstration project. The Judge acknowledged, in this regard, that collective bargaining agreements remain in effect for specified periods under § 4(h)(3)(D) of the Act and stated that the contracts "establish rights that may be legally enforceable in some manner." Id. at 17. However, the Judge found that "those voluntary agreements" did not "negate or dilute" the discretion provided the Respondent in other subsections of the Act. Id.

      The Judge also concluded that the legislative history of the Act confirmed that the Respondent's discretion was sole and exclusive. The Judge relied on, among other things, a minority report, expressing opposition to the legislation on the ground that it granted "sole authority to the [Respondent] to determine the `methods of involving . . . labor organizations . . . in personnel decisions.'" Id. at 15 (quoting H.R. Rep. No. 105-700, pt. 1, at 12 (1998)). In addition, the Judge found it notable that Congress chose not to include Respondent's demonstration projects within then-existing statutory authority for such projects set forth in 5 U.S.C. §§ 4701-4706 (the demonstration statute). The Judge found that, like the Act, the demonstration statute [ v58 p248 ] permits agencies to act without regard to "inconsistent" provisions in the Statute, including "the methods of involving . . . labor organizations . . . in personnel decisions." Judge's Decision at 18 (citing 5 U.S.C. § 4703(a)). In view of this, the Judge found significant the fact that, unlike the Act, a provision in the demonstration statute, 5 U.S.C. § 4703(f), expressly requires agencies to consult or negotiate with unions before unit employees are included in a demonstration project. According to the Judge, the inclusion of § 4703(f) suggests that, without that provision, the demonstration statute -- which contains wording identical to the Act -- would exempt agencies from bargaining under the Statute. Id.

      For the foregoing reasons, the Judge found that the Act vested the Respondent with sole and exclusive discretion to determine whether to bargain over the demonstration project prior to its implementation and, as a result, the Respondent did not violate the Statute as alleged in the complaint. The Judge noted that the Respondent "indicated it was willing to negotiate over the impact and implementation of the demonstration project once [it] was developed." Id. at 20. However, the Judge stated that, as the complaint alleged a violation only in connection with the failure to bargain prior to implementation of the demonstration project, he did not "reach the question of what, if any, obligation [the Respondent] may have to bargain on a post-implementation basis." Id.

III.     Positions of the Parties

A.     GC's Exceptions

      The GC contends that the Judge erred in concluding that the Act vests the Respondent with sole and exclusive discretion to determine whether to bargain over the demonstration project. According to the GC, the Act exempts the Respondent only from provisions of the Statute that are inconsistent with it. Also according to the GC, bargaining over the demonstration project would not have been inconsistent with the Act because bargaining would not have precluded implementation of the project.

      The GC asserts that, in several respects, § 4(a), (b), and (c) of the Act restate provisions in the Statute, thereby rendering the Act and the Statute consistent. The GC also argues, as to § 4(b), that the Judge erred in concluding that "consult means negotiate." Exceptions at 10. With regard to § 4(h)(3)(D), which provides that collective bargaining agreements remain in effect for specified periods of time under the Act, the GC states that, but for the Statute, "there would be no Unions, and no collective bargaining agreements in the Federal Sector." Id. at 14. Therefore, according to the GC, "[w]here there are Unions and collective bargaining agreements, which are recognized under the Act, it cannot be concluded that collective bargaining is inconsistent with the Act." Id.

      The GC disputes the Judge's reliance on the legislative history of the Act, arguing in particular that reliance on the minority report is "pure conjecture." Id. at 13. The GC also disputes the Judge's reliance on the demonstration statute, stating that "[w]hatever the intent of the drafters of 5 U.S.C. §§ 4701-4706, its construction cannot be relied upon to speculate on the intent of the Act's drafters." Id. at 15.

      To remedy the Respondent's violation of the Statute, the GC argues that a status quo ante remedy is appropriate.

B.     Respondent's Opposition

      The Respondent asserts that the Judge properly concluded that it has sole and exclusive discretion to determine whether to bargain over the demonstration project. According to the Respondent, the issue is not whether bargaining is consistent with the Act but, rather, whether the Respondent has sole and exclusive discretion to determine whether to bargain.

IV.     Analysis and Conclusions

      It is well established that if a law indicates that an agency's discretion is intended to be exercised only by the agency -- referred to by the Authority as "sole and exclusive" discretion -- then the agency is not obligated under the Statute to exercise that discretion through collective bargaining. See NAGE, Local R5-136, 56 FLRA 346, 348 (2000); POPA, 53 FLRA 625, 648 (1997). In determining whether an agency's discretion is sole and exclusive, the Authority examines the plain wording and the legislative history of the relevant statute. See Int'l Assoc. of Machinists and Aerospace Workers Franklin Lodge No. 2135, 50 FLRA 677, 691-92 (1995), petition for review denied as to other matters, 88 F.3d 1279 (D.C. Cir. 1996). A law need not use any specific phrase or words in order to confer sole and exclusive discretion. See ACT, Tex. Lone Star Chapter 100, 55 FLRA 1226, 1229 n.7 (2000), petition for review denied as to other matters, 250 F.3d 778 (D.C. Cir. 2001).

      Section 4(a) of the Act provides that the "conducting of any demonstration project shall not be limited by . . . any provision of [Title 5] which is inconsistent with the action, including any provision of law . . . (7) relating to the methods of involving . . . labor organizations [ v58 p249 ] . . . in personnel decisions." Collective bargaining is one method by which labor organizations become involved in personnel decisions under the Statute. See 5 U.S.C. § 7114. See also United States Dep't of Justice, INS, Wash., DC, 56 FLRA 351, 356 (2000). On its face, therefore, § 4(a)(7) refers to, among other things, collective bargaining under the Statute.

      We reject the GC's argument that it is necessary not only to find that § 4(a)(7) refers to collective bargaining but also that collective bargaining is inconsistent with the Act. In our view, the GC's argument is not supported by the plain, and complete, wording of § 4(a). In this regard, § 4(a) specifies, in relevant part, that:

The conducting of any such demonstration project shall not be limited by any lack of specific authority under title 5, United States Code, to take the action contemplated, or by any provision of such title or any rule or regulation prescribed under such title which is inconsistent with the action, including any provision of law, rule or regulation relating to [the matters enumerated in subsections 1 through 8].

      Although the GC views the enumerated matters as provisions from which the Respondent is exempt only if they are inconsistent with the Respondent's authority, we believe that the better view is that the enumerated matters are provisions that Congress has deemed are inconsistent with the Act. Section 4(a) provides that the Respondent is not limited by any provision of law "which is inconsistent" with Respondent's actions. The matters set forth in subsections (1) through (8) are examples of such inconsistent provisions -- not examples of provisions that may or may not be inconsistent. In deciding whether the Respondent is exempt from provisions relating to matters other than those enumerated it would be necessary to determine whether the provisions are inconsistent. For the enumerated matters, however, Congress has made the determination that they are inconsistent. [n2] 

      Other aspects of the Act are consistent with this finding. For example, § 4(b) of the Act requires the Respondent to consult only with the board of regents when developing a demonstration project. Although the Respondent may consult with others it deems "appropriate," it is not required to do so. The GC is correct that the terms "consult" and "negotiate" are not the same. However, it is reasonable to conclude, as the Judge did, that if the Respondent is not obligated even to consult with the Charging Party, then the Respondent likewise was not obligated to bargain. Section 4(c) of the Act is also consistent with the Judge's conclusion. In this regard, § 4(c)(3) provides that a demonstration project may not require employees to pay union dues. As the Judge pointed out, § 4(c)(3) restates a provision in the Statute and, as a result, would be unnecessary if the Statute applied to the demonstration project.

      Further, although § 4(c)(2) -- which provides that a demonstration project may not impose a duty to bargain over classification, pay, benefits, or other forms of compensation --implies that the Respondent is prohibited from bargaining only over those subjects, that is not inconsistent with a conclusion that the Respondent has sole and exclusive discretion to decide whether to bargain over other aspects of the demonstration project. In this connection, the Authority has routinely found that statutes vested agencies with sole and exclusive discretion with respect to particular subject matters. See, for example, AFGE, Local 3295, 47 FLRA 884, 893 (1993), aff'd sub nom. AFGE, Local 3295 v. FLRA, 46 F.3d 73, 76 (D.C. Cir. 1995) (Director of the Office of Thrift Supervision had sole and exclusive discretion to determine employee compensation). Nothing in those decisions holds or implies that the affected agencies were thereby required to bargain, or excused from bargaining, over other subject matters. For similar reasons, the GC's reliance on § 4(h)(3)(D), which provides that collective bargaining agreements continue to exist under the Act, is misplaced. In this regard, the Respondent's discretion under the Act applies, by its terms, only to the demonstration project. Thus, the Act would not affect the Respondent's bargaining obligation with respect to changes in employees' conditions of employment that are unrelated to the demonstration project.

      Two additional factors support the Judge's decision. First, at the time the Act was promulgated, there was authority -- the demonstration statute set forth in 5 U.S.C. chapter 47 -- for demonstration projects. With one notable exception, the Act and the demonstration statute are essentially identical with respect to relevant provisions. Both contain provisions permitting the conduct of demonstration projects without limitation by [ v58 p250 ] inconsistent provisions of title 5, and both enumerate as one particular provision "the methods of involving . . . labor organizations . . . in personnel decisions." 25 U.S.C. 3731, note, § 4(a)(7); 5 U.S.C. § 4703(a)(7). The one notable exception is that, unlike the demonstration statute, the Act does not require consultation or negotiation prior to inclusion of unit employees in a demonstration project. The fact that the Act is patterned virtually word-for-word on the demonstration statute but does not require consultation/negotiation is an indication that the intent of the drafters of the Act was to exempt the Respondent from such requirement. Further, the fact that the demonstration statute included a requirement for consultation/negotiation is, itself, an indication that without that provision, the demonstration statute would not require it. See Phoenix Area Indian Health Serv., Sacaton Serv. Unit, Hu Hu Kam Mem'l Hosp., Sacaton, Ariz., 53 FLRA 1200, 1210-11 (1998) (where Authority found that virtually identical provisions from different acts should be "read consistently"). Without the provision, the demonstration statute and the Act are functionally identical.

      Second, the legislative history supports construing the Act as providing sole and exclusive discretion. The GC claims, in this regard, that the Judge's reliance on statements in the minority report was "pure conjecture." Exceptions at 13. However, by its terms, the wording of the minority report clearly indicates that those opposing the Act believed that the Respondent had sole and exclusive discretion. See Judge's Decision at 15 (citing H.R. Rep. No. 105-700, pt. 1, at 12 (1998)). Therefore, it is relevant to the issue, and supports the Judge's conclusion.

      In sum, we conclude that the Respondent had sole and exclusive discretion to determine whether to bargain with the Charging Party over the demonstration project prior to its implementation. Therefore, the Respondent's failure to do so did not violate the Statute and the complaint is dismissed. [n3] 

V.     Order

      The complaint is dismissed.


Appendix

Section 4 of the Act provides, in relevant part, as follows:

Sec. 4. Authority
(a)     In General.-- Each institution named in section 3(b) . . . [Southwestern Indian Polytechnic Institute, located in Albuquerque, New Mexico] may conduct a demonstration project in accordance with the provisions of this Act. The conducting of any such demonstration project shall not be limited by any lack of specific authority under title 5, United States Code, to take the action contemplated, or by any provision of such title or any rule or regulation prescribed under such title which is inconsistent with the action, including any provision of law, rule or regulation relating to--
(1) the methods of establishing qualification requirements for, recruitment for, and appointment to positions;
(2) the methods of classifying positions and compensating employees;
(3) the methods of assigning, reassigning, or promoting employees;
(4) the methods of disciplining employees
(5) the methods of providing incentives to employees, including the provision of group or individual incentive bonuses or pay;
(6) the hours of work per day or per week;
(7) the methods of involving employees, labor organizations, and employee organizations in personnel decisions; and
(8) the methods of reducing overall staff and grade levels.
(b)     Consultation And Other Requirements.-- Before commencing a demonstration project . . ., the . . . institution involved shall--
(1) in consultation with the board of regents . . . and such other . . . representative bodies as the [institution] considers appropriate, develop a plan for such project . . .. .. .
. . . .
(c)     Limitations.-- No demonstration project under this Act may--
[ v58 p251 ] . . . .
(2) impose any duty to engage in collective bargaining with respect to--
(A) classification of positions; or
(B) pay, benefits, or any other form of compensation; or
(3) provide that any employee be required to pay dues or fees of any kind to a labor organization as a condition of employment.
. . . .
(h)     Applicability
. . . .
(3) Transition Provisions-
. . . .
(D) Collective-Bargaining Agreements.-- Any collective-bargaining agreement in effect on the day before a demonstration project under this Act commences shall continue to be recognized by the institution involved until the earlier of--
(i) the date occurring 3 years after the commencement date of the project;
(ii) the date as of which the agreement is scheduled to expire (disregarding any option to renew); or
(iii) such date as may be determined by mutual agreement of the parties.


File 1: Authority's Decision in 58 FLRA No. 60 and Appendix
File 2: ALJ's Decision


Footnote # 1 for 58 FLRA No. 60 - Authority's Decision

   Relevant portions of the Act are in the Appendix.


Footnote # 2 for 58 FLRA No. 60 - Authority's Decision

   Thus, it is not necessary to address further the GC's claims that the Statute and Act are not inconsistent. However, we note that, as interpreted by the GC, bargaining would never be inconsistent with the Act. In this regard, the GC claims that "negotiating . . . would not be inconsistent with the Act, as the Respondent would still be able to implement the [demonstration project]." Exceptions at 12. As the Respondent would always be able to implement, § 4(a)(7) would have no meaning under this interpretation. It is a "fundamental principle of statutory construction that `effect must be given, if possible, to every word, clause and sentence of a statute.'" Indianapolis Power and Light C