File 2: Opinion of Member Pope

[ v59 p431 ]


Opinion of Member Carol Waller Pope, dissenting in part:

      I would grant the application for review on the ground that the RD misapplied Authority precedent. In this regard, I disagree with the majority's conclusion that the RD properly dismissed the petitions. [n1] 

      The majority finds that 49 U.S.C. § 44935 Note (§ 44935) grants the head of the Agency the discretion to determine whether employees may organize to select an exclusive representative under the Statute. This conclusion is not supported by either the wording or legislative history of § 44935. It is also contrary to the terms of the Statute. In reaching its conclusion, the majority confuses two very different matters: the right to engage in/scope of collective bargaining and the right to exclusive representation. In the process, it runs roughshod over significant employee rights, implying that these rights are insignificant.

      Section 7111(a) of the Statute provides, as relevant here, that "[a]n agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative . . . by a majority of the employees in an appropriate unit . . . ." In order for employees to be included in an appropriate unit for labor organization representation, they must be employed in an "agency." Phoenix Area Indian Health Serv., Sacaton Serv. Unit, Hu Hu Kam Mem'l Hosp., Sacaton, Ariz., 53 FLRA 1200, 1219 (1998) (Hu Hu Kam). The Statute defines the term "agency" as "an Executive agency" and the term "labor organization" as "an organization . . . which has as a purpose the dealing with an agency concerning grievances and conditions of employment[.]" 5 U.S.C. § 7103(a)(3) and (a)(4).

      The RD found, and there is no dispute, that the Agency is "within an Executive Branch department and authorized . . . to employ personnel to carry out its mission." RD Decision at 20. There also is no dispute that the Petitioner qualifies as a "labor organization" under the Statute. Further, the statute setting up the Agency specifically incorporates the personnel system of the Federal Aviation Administration, which explicitly requires that agency to comply with the Statute. See 49 U.S.C. §§ 114(m)(1), 40122(a)(1), 40122(g)(2)(C). Nevertheless, the majority finds that a representation election may not be held in this case based on § 44935, which permits the Agency to "employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service" of the employees encompassed by the petition in this case "[n]otwithstanding any other provision of law[.]"

      The majority does not explain why it interprets § 44935 to permit the Agency head to eliminate employees' right to organize under the Statute. Moreover, even a casual reading of § 44935 demonstrates that it relates to the determinations of employee working conditions -- hiring, appointment, discipline, and compensation -- not a determination whether the employees are permitted to organize under the Statute. Although that provision may grant the Agency discretion over the subjects contained in it, it does not grant discretion to add subjects that Congress left out. That is what the majority does here.

      That the majority is rewriting § 44935 to suit its outcome is evident by comparing similar statutory provisions that the Authority and the courts previously have construed. In this regard, Congress has enacted a variety of provisions that grant agencies discretion to determine various conditions of employment. See, e.g., Colo. Nurses Ass'n v. FLRA, 851 F.2d 1486, 1488 (D.C. Cir. 1988) (Veterans Administration Title 38 employees); N.J. Air Nat'l Guard v. FLRA, 677 F.2d 276 (3d Cir. 1982), cert denied, 459 U.S. 988 (National Guard technicians); United States Dep't of the Interior, Bureau of Indian Affairs, S.W. Indian Polytechnic Inst., Albuquerque, N.M., 58 FLRA 246, 248-49 (2002) (employees of Indian college) (BIA); Hu Hu Kam, 53 FLRA at 1219 (employees on long term special purpose assignment); AFGE, Local 3295, 47 FLRA 884, 894 (1993), enforced sub nom. AFGE, Local 3295 v. FLRA, 46 F.3d 73 (D.C. Cir. 1995) (Office of Thrift Supervision employees) (OTS). Where such provisions are interpreted to grant [ v59 p432 ] an agency sole and exclusive discretion, they may significantly affect an exclusive representative's right to engage in, or the scope of, collective bargaining. See BIA, 58 FLRA at 248-49; OTS, 47 FLRA at 894. [n2] 

      Congress also has enacted a variety of provisions that explicitly deny employees' rights to organize. For example, the Statute itself provides at least three avenues for the exclusion of employees from its coverage. First, § § 7103(a)(3) excludes specific agencies from the definition of the term "agency." Second, § 7103(b)(1) permits the President to issue an executive order excluding "any agency or subdivision thereof" from coverage for a variety of reasons, including national security. Third, § 7112(b) provides seven categories of employees who cannot be included in an appropriate unit. In addition, Congress has granted at least one agency the unreviewable discretion to exempt employees from coverage under the Statute. See NIMA, 57 FLRA at 838 n.4 (citing 10 U.S.C. § 461(c)(2).

      The fact that Congress has, over the years, enacted some provisions that provide agency heads discretion to take subjects off the bargaining table and enacted other provisions that deny (or permit agencies to deny) employees the right to organize under the Statute leads to the obvious conclusion that there is a difference between the two. It also is obvious, at least to me, that determining which category a particular statutory provision falls into necessitates examination of the provision's wording. Put differently, the words matter. The majority states, in this connection, that Congress need not use "language similar" to that in 10 U.S.C. § 461 to exclude employees from coverage under the Statute. Majority Opinion at 14. The majority does not, however, explain how Congress can achieve this result by using no language at all expressing such intent. There is no basis for concluding that Congress meant one thing when it said another. [n3] 

      In addition to ignoring the wording of § 44935, the majority also conflates the matter of the scope of bargaining with the matter of coverage under the Statute, asserting that by "seeking to be formally recognized as the exclusive representative of these employees[,]" the Petitioner "attempt[s] to override" the Agency's determination that it "will not bargain over terms and conditions of employment." Id. at 14. This is nonsense. Whatever the Petitioner's desire to engage in collective bargaining -- and noting that nothing in § 44935 prohibits the agency from engaging in bargaining [n4]  -- the purpose of an election petition is to become an exclusive representative.

      In this regard, I agree completely with the majority that collective bargaining is an important, but far from the only, right granted exclusive representatives under the Statute. See Majority Opinion at 14-16. What the majority fails to grasp, however, is the significance of this. The fact that there are important rights granted under the Statute to exclusive representatives -- separate and apart from the right to engage in collective bargaining [n5]  - means that even if the majority is correct that § 44935 grants the Agency broad discretion to take virtually all conditions of employment off the bargaining table (an issue I find no reason to address), there is no statutory basis for depriving employees of the right to select an exclusive representative to exercise other rights. [n6] The majority concedes, in this regard, that exclusive representation granted under § 7111 involves much more than just a "limited right to engage only in the collective bargaining process." Majority Opinion at 15. [ v59 p433 ] The majority misses the point, however, by concluding that the right to organize under the Statute is only available to employees who have every other right granted under the Statute available to them. [n7] If that were the case, then the numerous Federal employees who work under statutes that limit their bargaining rights, described above, would not be permitted to choose an exclusive representative.

      In sum, I do not believe that the Statute requires a determination that an agency must engage in collective bargaining with a union prior to permitting the employees to organize a union. [n8] Accordingly, I would find that the petitions should be processed, reverse the RD's finding to the contrary, and remand for processing of the petitions. [n9] 


File 1: Authority's Decision in 59 FLRA No. 63
File 2: Opinion of Member Pope


Footnote # 1 for 59 FLRA No. 63 - Opinion of Member Pope

   The majority ignores the Regional Director's finding that the petition presented an issue of Authority jurisdiction. RD Decision at 3, 19. In my view, it is important to reiterate that, no matter how the Authority construes § 44935, nothing in that statute deprives the Authority of jurisdiction here. In the rare situation where Congress has intended to permit another agency to deprive the Authority of jurisdiction over a matter, it has made that intention explicit. See, e.g., Wis. Fed'n of Nurses & Health Prof'ls, Veterans Admin. Staff Nurses Council, Local 5032, 47 FLRA 910, 913-14 (1993) (Authority lacked jurisdiction to review a VA Secretary determination because 38 U.S.C. § 7422(d) provides that the determination "may not be reviewed by any other agency"). See also United States Dep't. of Defense, National Imagery and Mapping Agency, St. Louis, Mo., 57 FLRA 837, 838 n.4 (2002) (NIMA) (determination by the Director of NIMA under 10 U.S.C. § 461(c)(2) to terminate bargaining unit coverage unreviewable by the FLRA).


Footnote # 2 for 59 FLRA No. 63 - Opinion of Member Pope

   The majority is, thus, incorrect in stating that the only examples of unions having "less than the full rights accorded to exclusive representatives" are national consultation rights under § 7113(a) and dues withholding under § 7115(c)(1). Majority Opinion at 17. The Federal labor-management relations program is replete with examples of employees whose collective bargaining rights are limited by the operation of other statutes.


Footnote # 3 for 59 FLRA No. 63 - Opinion of Member Pope

   The limited legislative history relied on by the majority does not support its construction of § 44935. As the majority notes, the conference report accompanying § 44935 encouraged the Agency to exercise its discretion by providing certain benefits and protections, without mentioning the right to organize under the Statute. See H.R. Conf. Rep. No. 107-296 at 64. While I find no reason to imbue total silence of the conference committee on the subject of union organizing with great significance, this silence could just as easily support an inference contrary to that of the majority. That is, the committee could have omitted reference to this issue because it understood that employees would have the right to organize under the Statute by virtue of their inclusion in the FAA personnel system. Representative Schakowsky's comments do not support a contrary conclusion. As the Supreme Court has explained, it "does not usually accord much weight to the statements of a bill's opponents. `[T]he fears and doubts of the opposition are no authoritative guide to the construction of legislation.'" Shell Oil Co., 488 U.S. 19, 29, 109 S. Ct. 278, 283 (1988) (quoting Gulf Offshore Co., 453 U.S. 473, 483, 101 S. Ct. 2870, 2878 (1981)).


Footnote # 4 for 59 FLRA No. 63 - Opinion of Member Pope

   Unlike agencies specifically exempted from coverage of the Statute in § 7103(a)(3), such as the FBI, the Agency may voluntarily elect to engage in collective bargaining. See, e.g., Colo. Nurses Ass'n v. FLRA, 851 F.2d 1486, 1491 (D.C. Cir. 1988).


Footnote # 5 for 59 FLRA No. 63 - Opinion of Member Pope

   For example, § 7101(a)(1) sets forth Congress' recognition and protection of not only employees' right to bargain collectively, but also employees' separate right to "participate through labor organizations of their own choosing in decisions which affect them[.]" Consistent with this, § 7102(1) sets out separate employee rights to (1) "act for" and "present the views of the labor organization" to "heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities," and (2) "engage in collective bargaining." Similarly, § 7114(a) provides the right to "act for" employees and a separate right to "negotiate collective bargaining agreements." Section 7114 also provides for the right to be represented in formal discussions and in certain examinations of employees. See, e.g., United States Dep't of Energy, Rocky Flats Field Office, Golden, Colo., 57 FLRA 754, 755 (2002) (formal discussion); Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 54 FLRA 1502, 1509 (1998) (certain examinations). These additional rights are not an aspect of collective bargaining. See NLRB v. Weingarten, 420 U.S. 251, 259 (1975) (representation at Weingarten interview not collective bargaining). Likewise, the term "grievance" is defined broadly in § 7103(a)(9) of the Statute and would encompass whatever dispute resolution processes are available to employees, not only a negotiated grievance procedure. See Dep't of the Air Force v. FLRA, 316 F.3d 280, 285-86 (D.C. Cir. 2003).


Footnote # 6 for 59 FLRA No. 63 - Opinion of Member Pope

   Indeed, the Agency head appears to acknowledge this. In the January 8, 2003 memorandum, the Agency head states only that employees may not be "represented for the purpose of engaging in [collective] bargaining[.]" The Agency head makes no statement that employees may not be represented for other purposes. Nevertheless, consistent with the wording of § 44935, I believe that the Agency head acted beyond his authority under that section in determining that employees may not organize under the Statute.


Footnote # 7 for 59 FLRA No. 63 - Opinion of Member Pope

   The majority does not explicitly rely on § 7111(b)(1)(A), cited by the Regional Director, which provides for the filing of an election petition with the Authority alleging "that 30 percent of the employees in the appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative[.]" Read in the context of the Statute as a whole, I believe the phrase "the purpose of collective bargaining" in § 7111(b)(1)(A) is an example of the functions of an exclusive representative, not a limitation on the situations in which an election may be held. In any event, as noted above, nothing in the ATSA prohibits the Agency from bargaining with an exclusive representative. As such, employees are free to express their desire to bargain, even if the Agency has decided not to bargain at this time.


Footnote # 8 for 59 FLRA No. 63 - Opinion of Member Pope