U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. v. FLRA, 145 F.3d 1425 (D.C. Cir. 1998)


ORAL ARGUMENT SCHEDULED FOR APRIL 23, 1998

No. 97-1522

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

UNITED STATES DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C.,
Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                    Respondent
_______________________________



ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT
OF AN ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY




BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY


            DAVID M. SMITH
              Solicitor

            SARAH WHITTLE SPOONER
              Attorney

            Federal Labor Relations Authority
            607 14th Street, N.W.
            Suite 330
            Washington, D.C.  20424-0001
            (202) 482-6620



ORAL ARGUMENT SCHEDULE D FOR APRIL 23, 1998

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES


A.  Parties and amici
    Appearing below in the administrative proceeding before
    the Federal Labor Relations Authority (Authority) were the
    National Association of Government Employees, Local R3-10 and U.S. Department of
    Transportation, Federal Aviation Administration, Washington, D.C. The agency is
    the petitioner in this court proceeding; the Authority is the respondent.

B.  Rulings under review
    The ruling under review is the Authority's decision and order in
    National Association of Government Employees, Local
    R3-10 and U.S. Department of Transportation, Federal Aviation Administration,
    Washington, D.C., Case No. 0-NG-2284, issued on June 30, 1997.  The Authority's
    decision is reported at 53 FLRA (No. 20) 139.

C.  Related Cases
    This case has not previously been before this Court or any other court.
    Counsel for the Authority are unaware of any cases pending before this
    Court which are related to this case within the meaning of Local Rule
    28(a)(1)(C).




TABLE OF CONTENTS

STATEMENT OF JURISDICTION  1

STATEMENT OF THE ISSUES  2

STATEMENT OF THE CASE  2

I.  Nature of the Case  2

II.  Statement of the Facts  3

A.  Background   3

B.  Arguments Raised to the Authority  4

C.  The Authority's Decision   5

STANDARD OF REVIEW   7

SUMMARY OF THE ARGUMENT  9

ARGUMENT   12

I.  THE AUTHORITY PROPERLY DETERMINED THAT THE AGENCY HAD,
AND FAILED TO MEET, THE BURDEN OF ESTABLISHING THAT
THE PROPOSAL WAS OUTSIDE THE DUTY TO BARGAIN   12

A.  An agency has the burden to establish its
assertion that a proposal is outside the duty to bargain   12

1.  The statutory and regulatory framework of negotiability appeals   13

2.  Authority precedent establishes that an
agency must specifically establish its
contention that a proposal is outside the
duty to bargain   14

3.  Precedent of this Circuit establishes that
the parties bear the burden of creating a
record upon which the Authority can make a negotiability determination    16

4.  Placing the burden of specificity on
parties maintains efficiency and is
consistent with concepts of administrative exhaustion   17

B.  The Agency failed to meet its burden to
establish that the proposal is outside the duty
to bargain   19

1.  The Agency did not cite to a specific
regulatory section or provide any evidence
or arguments in support of its allegation of
nonnegotiability    20

2.  Precedent relied on by the Agency is distinguishable   22

a.  Dep't of Treasury  22

b.  POPA  24

II.  THE AGENCY'S ADDITIONAL ALLEGATIONS ARE NOT PROPERLY
BEFORE THIS COURT AND OTHERWISE LACK MERIT  25

A.  Inconsistency with the Standards of Ethical
Conduct  26

1.  This Court does not have jurisdiction to
address the Agency's claim because the
Agency did not raise that claim to the
Authority   26

2.  The Agency did not request reconsideration
in this case  28

3.  The record does not demonstrate that the
proposal is inconsistent with the Standards
of Ethical Conduct   30

B.  The proposal is not inconsistent with
management's right to assign work  33

1.  This Court lacks jurisdiction to consider
the Agency's allegations that the Authority misconstrued the FAA's position
34

2.  The Authority's construction of the Agency's arguments was reasonable and is
entitled to deference    35

3.  The proposal does not involve training and is
not inconsistent with management's right to
assign work   36

C.  The Authority followed its regulations   38

1.  Court lacks jurisdiction to consider the
Agency's allegations that the Authority
failed to follow its regulations   39

2.  The Authority acted consistent with its  regulations and precedent   40

CONCLUSION   43



ADDENDUM

Relevant portions of the Federal Service Labor-Management Relations Statute, 5
U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) and other pertinent regulations  A-1



TABLE OF AUTHORITIES

*AFGE, Local 2303 v. FLRA, 815 F.2d 718
  (D.C. Cir. 1987)   16, 17, 18, 36

Bowman Transportation, Inc. v. Arkansas-Best
  Freight System, Inc., 419 U.S. 281 (1974)  8

Bureau of Alcohol, Tobacco and Firearms v. FLRA,
  464 U.S. 89 (1983)   9

Burlington Truck Lines v. United States,
  371 U.S. 156 (1962)  8

Chevron, U.S.A., Inc. v. Natural Resources Defense
  Council, Inc., 467 U.S. 837 (1984)   8

Dept of the Treasury, U.S. Customs Service v. FLRA,
  762 F.2d 1119  22, 23, 24

DoD v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981)  8, 19

EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984),
  cert. dismissed, 476 U.S. 19 (1986)  8, 18, 27

Exxon Corp. v. FERC, 114 F.3d 1252 (D.C. Cir. 1997)   41

Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990)   8

K N Energy, Inc. v. FERC, 968 F.2d 1295
  (D.C. Cir. 1992)   28

Library of Congress v. FLRA, 699 F.2d 1280
  (D.C. Cir. 1983)   13

McCarthy v. Madigan, 503 U.S. 140 (1992)   18

NLRB v. Hasbro Indus., 672 F.2d 978
  (1st Cir. 1982)  36

*Cases or authorities chiefly relied upon are marked by asterisks

*NFFE, Local 1167 v. FLRA, 681 F.2d 886
  (D.C. Cir. 1982)   passim

NFFE, Local 1669 v. FLRA, 745 F.2d 705 (D.C. Cir. 1984)   8

*NFFE v FLRA, 789 F.2d 944 (D.C. Cir. 1986)   15, 16

NLRB v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993)   29

NTEU v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983)   8

National Treasury Employees Union v. FLRA, 30 F.3d 1510
  (D.C. Cir. 1994)   20

Overseas Education Association v. FLRA,
  827 F.2d 814 (1987)   8, 27

Overseas Education Association v. FLRA, 858 F.2d 769
  (D.C. Cir. 1988)   7, 8

*U.S. Department of Commerce v. FLRA, 7 F.3d 243
  (D.C. Cir. 1993)   27, 29, 34

*U.S. Department of Defense v. FLRA, 982 F.2d 577
  (D.C. Cir. 1993)   15, 20, 27

U.S. Department of Veterans Affairs v. FLRA,
  1 F.3d 19 (D.C. Cir. 1993)   28



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

AFGE, AFL-CIO, Local 3760 and Department of Health
  and Human Services, Social Security
  Administration, 32 F.L.R.A. 813 (1988)   15

AFGE, AFL-CIO, Local 3760 and Department of Health
  and Human Services, Social Security
  Administration, 33 F.L.R.A. 498 (1988)   42
TABLE OF AUTHORITIES
(Continued)



Decisions of the Federal Labor Relations Authority:

AFGE, Department of Education Council of AFGE Locals
  and U.S. Department of Educ., 38 F.L.R.A. 1068
  (1990)   14, 15, 41

AFGE, Local 2094 and Veterans Admin. Medical Center,
  22 F.L.R.A. 710 (1986), affd on other grounds
  sub nom. AFGE, Local 2094 v. FLRA, 833 F.2d 1037
  (1987)   37, 38

AFGE, Local 3601 and U.S. Department of Health and
  Human Services, Public Health Service,
  38 F.L.R.A. 177 (1990)   39

AFGE, Local 3673 and U.S. Department of the Navy,
  Naval and Warfare Center, 50 F.L.R.A. 720 (1995)    34

Coordinating Committee of Unions and Department
  of the Treasury, Bureau of Engraving and Printing,
  29 F.L.R.A. 1436 (1987)   14

National Treasury Employees Union and Department of the
  Treasury, 11 F.L.R.A. 247 (1983)   23

NFFE, Local 15 and Dep't of the Army, U.S. Army Armament,     Munitions and
Chemical Command, Rock Island, IL,
  30 F.L.R.A. 1046 (1988)   42

Patent Office Professional Associate and U.S. Department
  of Commerce, Patent and Trademark Office,
  41 F.L.R.A. 795 (1991)  14, 24, 25

U.S. Department of Health and Human Services, Social
  Security Administration and AFGE, Local 1336,
  39 F.L.R.A. 22 (1991)   29



Decisions of the Federal Labor Relations Authority:

U.S. Department of the Air Force and NAGE, Local R7-23,
  50 F.L.R.A. 84 (1995)   29



STATUTES

Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996)   1, 3
  5 U.S.C. § 7105(a)(2)(E)   1
  5 U.S.C. § 7106(a)(2)(B)  3, 4, 37
  5 U.S.C. § 7117(a)(1)   3
  5 U.S.C. § 7117(c)   passim
  5 U.S.C. § 7117(c)(1)   13
  5 U.S.C. § 7117(c)(3)(A)   13
  5 U.S.C. § 7117(c)(4)   13
  5 U.S.C. § 7123(a)   2, 3
  5 U.S.C. § 7123(b)   2, 3
  5 U.S.C. § 7123(c)   passim
  5 U.S.C. § 706(2)(A)   7
  5 U.S.C. § 7353   26
  31 U.S.C. § 1353   32
  37 U.S.C. § 418   27
  49 U.S.C. § 326(a)   26, 31

Executive Order 12574 [sic], as modified by EO 12731
  and 5 CFR 2635.01 [sic] et. seq.  4, 5, 20, 21

Privacy Act, 5 U.S.C. § 552a   25



CODE OF FEDERAL REGULATIONS

  5 C.F.R. Part 2424  13
  5 C.F.R. § 2424.4   14, 15
  5 C.F.R. § 2424.4(a)(2)(ii)   41
  5 C.F.R. § 2424.6   14
  5 C.F.R. § 2424.6(a)(2)   13, 14, 16, 17
  5 C.F.R. § 2424.7   14
  5 C.F.R. § 2424.7(b)    16
  5 C.F.R. § 2429.17   18, 29, 39, 40
  5 C.F.R. Part 2600   24
  5 C.F.R. Part 2635   22, 26, 33
  5 C.F.R. § 2635.01   5, 21
  5 C.F.R. § 2635.201   30
  5 C.F.R. § 2635.203(b)   31
  5 C.F.R. § 2635.203(b)(8)(i)   32
  5 C.F.R. § 2635.204(k)   32



MISCELLANEOUS

Federal Personnel Manual, 5 C.F.R. 551  17, 23

Federal Travel Regulations   17



GLOSSARY

AFGE - American Federation of Government
Employees, AFL-CIO

Agency - Federal Aviation Administration

ATAs - Air Traffic Assistants

ATCs - Air Traffic Controllers

AFGE, Dep't of Educ. - AFGE, Dep't of Educ. Council of
AFGE Locals and U.S. Dep't of Educ., 38 FLRA 1068 (1990)

AFGE, Local 2303 - AFGE, Local 2303 v. FLRA,
815 F.2d 718 (D.C. Cir. 1987)

AFGE, Local 3760 - AFGE, AFL-CIO, Local 3760 and Dep't
of Health and Human Services,  Social Security
Administration, 32 FLRA 813 (1988)

Br. - Brief

Coordinating Committee  Coordinating Committee of Unions  of Unions -
and Dep't of the Treasury, Bureau of Engraving and
Printing, 29 FLRA 1436 (1987)

Dep't of Commerce - U.S. Dep't of Commerce v. FLRA, 7 F.3d 243 (D.C. Cir. 1993)

Dep't of Defense - U.S. Dep't of Defense v. FLRA, 982F.2d 577 (D.C. Cir. 1993)

Dep't of the Air Force - U.S. Dep't of the Air Force and
NAGE, Local R7-23, 50 FLRA 84 (1995)

Dep't of the Navy - AFGE, Local 3673 and U.S. Dep't of
the Navy, Naval and Warfare Center, 50 FLRA 720 (1995)

Dep't of Treasury - Dep't of the Treasury, U.S. Customs
Service v. FLRA, 762 F.2d 1119 (1985)

DoD v. FLRA - Dep't of Defense v. FLRA, 659 F.2d
1140 (D.C. Cir. 1981)

EEOC - EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed,
 476 U.S. 19 (1986)

FAA - Federal Aviation Administration

FAM program - Liaison and Familiarization Travel
program

FPM - Federal Personnel Manual

JA - Joint Appendix

NAGE, Local R-310 - National Association of Government
Employees, Local R3-10 and U.S. Department of
Transportation, Federal Aviation Administration,
53 FLRA 139 (1996)

National Treasury - National Treasury Employees Union Employees Union -
and Department of the Treasury, 11 FLRA 247 (1983)

NFFE, Local 1167 - NFFE, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982)

NFFE, Local 1669 - NFFE, Local 1669 v. FLRA, 745 F.2d 705 (D.C. Cir. 1984)

Overseas Educ. - Overseas Ass'n v. FLRA, 827 F.2d 814 (1987)

POPA - Patent Office Professional Assoc. and
U.S. Dep't of Commerce, Patent and Trademark Office, 41
FLRA 795 (1991)

Public Health Service - AFGE, Local 3601 and U.S. Dep't of
Health and Human Services, Public Health Service, 38 FLRA
177 (1990)

Standards of Ethical - Standards of Ethical Conduct for
Conduct Employees of the Executive Branch

Supplemental Response - Response to the Agency's
Supplemental SOP

Supplemental SOP - Supplemental Statement of Position
Statute - Federal Service Labor-Management
Relations Statute, 5 U.S.C.
            §§ 7101-7135

ULP - Unfair Labor Practice

Union - National Association of Government
Employees, Local R3-10




ORAL ARGUMENT SCHEDULED FOR APRIL 23, 1998

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

 No. 97-1522

_______________________________

U.S. DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C.
                  Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                  Respondent
_______________________________



ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY




BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY



STATEMENT OF JURISDICTION

  The final decision and order under review in this case was issued by the
  Federal Labor Relations Authority (Authority or FLRA) in National
  Association of Government Employees, Local R3-10 and U.S. Department of
  Transportation, Federal Aviation Administration, 53 FLRA 139 (1996), on June
  30, 1997.  The Authority exercised jurisdiction over the case pursuant to
  section 7105(a)(2)(E) of the Federal Service Labor-Management Relations
  Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) (Statute).[1]
  This Court has jurisdiction over the petition for review and cross
  application for enforcement pursuant to section 7123(a) and (b) of the
  Statute.

STATEMENT OF THE ISSUES

  1.  Whether the Authority properly determined that the Agency had, and
  failed to meet, the burden of establishing that the proposal was outside the
  duty to bargain.
  2.  Whether this court has jurisdiction to consider arguments that the
  Agency did not raise to the Authority.

STATEMENT OF THE CASE

I.  Nature of the Case
  This case arises as a negotiability proceeding under section 7117(c) of the
  Statute.  National Association of Government Employees, Local R3-10 (Union),
  which represents Air Traffic Assistants (ATAs) employed by the Federal
  Aviation Administration (Agency or FAA), submitted a bargaining proposal
  concerning the implementation of a Liaison and Familiarization Travel
  program (FAM program).  The Agency declared the proposal nonnegotiable.  The
  Union appealed the Agency's allegations of nonnegotiability to the Authority
  under section 7117(c) of the Statute.
  The Authority held the proposal within the duty to bargain because the FAA
  failed to establish that the proposal was inconsistent with a Government-
  wide regulation under section 7117(a)(1) of the Statute.  Pursuant to
  section 7123(a) and (b) of the Statute, the FAA seeks review, and the
  Authority seeks enforcement, of the Authority's bargaining order in the
  case.
II.  Statement of the Facts
  A.  Background
  This case involves approximately 365 ATAs who are employed by the FAA and
  are members of a nationwide unit represented by the Union.  JA 9.[2]  Duties
  of the ATAs include assisting Air Traffic Controllers (ATCs) by providing
  ATCs with support data and information.  In October 1995, the Union
  submitted to the Agency a proposal for bargaining entitled "Liaison and
  Familiarization Travel."  JA 12.  That proposal would make ATAs eligible to
  participate in the FAA's national standardized familiarization travel
  program.[3]  Id.
  The Agency refused to bargain on the Union's proposal, asserting that it was
  outside the duty to bargain because it interfered with management's right to
  assign work under section 7106(a)(2)(B) of the Statute.  JA 17.  In response
  to the Agency's allegation of nonnegotiability, the Union filed the instant
  negotiability appeal with the Authority pursuant to section 7117(c) of the
  Statute.
  B.  Arguments Raised to the Authority
  Before the Authority, the Agency initially reasserted in its Statement of
  Position that the proposal was outside the duty to bargain because it was
  inconsistent with management's rights under section 7106(a)(2)(B) of the
  Statute.  Specifically, the Agency claimed that those portions of the
  proposal requiring the Agency to make training assignments were inconsistent
  with management's right to assign work.  JA 29.
  In its Response to the Agency's Statement of Position (Response), the Union
  modified the proposal by deleting all the portions of the proposal referring
  to training.  JA 34-35.  The Union asserted that, as modified, the proposal
  did not interfere with management's right to assign work.
  With the Authority's permission (JA 46), the Agency filed a Supplemental
  Statement of Position (Supplemental SOP).  JA 48.  In its two-page
  Supplemental SOP, the Agency began by noting that the Union had
  substantially changed the original proposal by deleting all references to
  training and acknowledging that the intent of the new proposal was to
  provide a benefit to ATAs that the Agency conferred to other employees.  In
  its Supplemental SOP, the Agency made no reference to its management right
  to  assign work, but instead asserted that the proposal set forth in the
  Union's Response was contrary to Government-wide regulation and outside the
  duty to bargain because:
  Executive Order 12574 [sic] as modified by EO 12731 and 5 CFR 2635.01 et. seq.,
  Standard of Conduct for Employees of the Executive Branch [sic], a government-
  wide regulation prohibits the acceptance of gifts by federal employees.
  Deleting all references to the FAM program as a training programs [sic], results
  in allowing the ATAs to accept free air travel for personal use.  Free air
  travel for personal use is considered a gift prohibited by the Standards of
  Conduct for Emloyees [sic] of the Executive Branch  [sic].
  JA 48A.  This paragraph encompasses the FAA's entire argument explaining why the
  Union's proposal is outside the duty to bargain.
  The Union filed a Response to the Agency's Supplemental SOP (Supplemental
  Response), asserting that the FAM program set forth in the proposal would
  not constitute a gift for ATAs, just as the existing FAM program established
  for other employees of the Agency does not.  JA 49-50.  The Union also
  claimed that the proposal was "intended only to ensure that ATA's [sic] are
  treated fairly and equitably[,]" and to provide ATAs with "the same benefit
  of attending Union and/or Agency sponsored events as well as obtaining the
  familiarization with the operation of the aircraft equipment . . . ."  JA
  50.  According to the Union, participation in the FAM program would "enhance
  ATA's [sic] job performance and promotional opportunities."  Id.
  C.  The Authority's Decision
  As a threshold matter, the Authority found that the original proposal
  submitted by the Union in its Petition for Review was no longer before the
  Authority for a negotiability determination.  The Authority based this
  finding on the fact that the Union had substantially modified its original
  proposal and the Agency had not objected to the modification by claiming
  that the proposal as set forth in the Union's Response was not properly
  before the Authority.  Further, the Agency filed a Supplemental SOP in which
  it addressed the merits of the negotiability of the modified proposal,
  asserting that the proposal was outside the duty to bargain on wholly
  different grounds than asserted with regard to the original proposal.  JA
  51-52, n.1.
  Following standard practice, the Authority then addressed the meaning of the
  proposal.  The Authority noted that the parties had not provided information
  about the FAM program as established for ATCs and the Union had not
  explained how the proposal would operate.  Nonetheless, on examination of
  the plain wording of each section of the proposal, the Authority discussed
  what the proposal would accomplish and established the meaning of the
  proposal.  JA 53.
  Having determined that the proposal set forth in the Union's Response was
  the proposal on which the parties were seeking a negotiability
  determination, and having sufficiently articulated the meaning of the
  proposal, the Authority considered the allegation that the proposal was
  outside the duty to bargain.  Specifically, the Authority addressed the
  Agency's Supplemental SOP, in which the Agency claimed that the proposal was
  inconsistent with the Standards of Ethical Conduct for Employees of the
  Executive Branch (Standards of Ethical Conduct).  In analyzing the Agency's
  contention, the Authority noted that the Agency did not cite to any specific
  section of the regulation nor "offer any arguments establishing a basis for
  its contention."  Id.
  Relying on established precedent, the Authority stated that "parties bear
  the burden of creating a record upon which the Authority can make a
  negotiability determination."  Id.  Describing an agency's burden in the
  negotiability context, the Authority noted that an agency that does not
  identify and analyze the specific provisions of law with which a proposal is
  alleged to be inconsistent "acts at its peril."  Id.
  Turning to the Agency's allegation that the proposal was outside the duty to
  bargain in this case, the Authority found that the Agency's "bare assertion"
  did not meet that burden.  JA 54.  In doing so, the Authority noted that it
  is not appropriate for the Authority to base a negotiability determination
  on its own independent review of an arguably pertinent regulation.  It also
  noted that even if the Authority bore that burden, the record in the case
  was insufficient for the Authority to conclude that the proposal was
  inconsistent with the regulation.  JA 54 n.2.  Accordingly, the Authority
  concluded that the proposal was within the duty to bargain.

STANDARD OF REVIEW

  The standard of review of Authority decisions is narrow; Authority action
  shall be set aside only if "arbitrary, capricious, an abuse of discretion,
  or otherwise not in accordance with law."  5 U.S.C. § 7123(c), incorporating
  5 U.S.C. § 706(2)(A); Overseas Educ. Ass'n v. FLRA, 858 F.2d 769, 771-72
  (D.C. Cir. 1988); EEOC v. FLRA, 744 F.2d 842, 847 D.C. Cir. 1984), cert.
  dismissed, 476 U.S. 19 (1986) (EEOC).  Under this standard, unless it
  appears from the Statute or its legislative history that the Authority's
  construction of its enabling act is not one that Congress would have
  sanctioned, the Authority's construction should be upheld.  See Chevron,
  U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844
  (1984); Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990).  More specifically,
  "a negotiability decision will be upheld if the FLRA's construction of the
  [Statute] is 'reasonably defensible.'" Overseas Educ. Ass'n v. FLRA, 827
  F.2d 814, 816 (D.C. Cir. 1987) (Overseas Educ Ass'n.) (quoting Dep't of
  Defense v. FLRA, 659 F.2d 1140, 1162 n. 121 (D.C. Cir. 1981) (DoD v. FLRA)).
  Further, factual findings of the Authority that are supported by substantial
  evidence on the record as a whole are conclusive.  5 U.S.C. § 7123(c); NTEU
  v. FLRA, 721 F.2d 1402, 1405 (D.C. Cir. 1983).  Administrative agency
  determinations are to be upheld even if that decision is of "less than ideal
  clarity[,]" Bowman Transportation, Inc. v. Arkansas-Best Freight System,
  Inc., 419 U.S. 281, 285-86 (1974), so long as there is a "rational
  connection between the facts found and the choice made[.]"  Burlington Truck
  Lines v. United States, 371 U.S. 156, 168 (1962).  See also NFFE, Local 1669
  v. FLRA, 745 F.2d. 705, 708 (D.C. Cir. 1984) (NFFE, Local 1669).
  Finally, as the Supreme Court has stated, the Authority is entitled to
  "considerable deference when it exercises its 'special function of applying
  the general provisions of the [Statute] to the complexities' of federal
  labor relations."  Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S.
  89, 97 (1983).

SUMMARY OF THE ARGUMENT

  I.  The statutory and regulatory provisions governing negotiability appeals, as
  well precedent of the Authority and this Court, confirm that an agency has the
  burden to provide the Authority with the information, evidence, and arguments
  supporting its allegation that a proposal is outside the duty to bargain.
  Requiring and enforcing such burdens maintains efficiency and is consistent with
  the principles of administrative exhaustion.
  The Agency erroneously asserts that its three-sentence  submission to the
  Authority, which failed to cite any specific regulatory provision or provide
  any evidence, information, or arguments supporting its statement, satisfied
  the Agency's statutory and regulatory obligation.  Because the Agency failed
  to establish, with its bare and unsupported allegation, that the proposal
  was outside the duty to bargain, the Authority properly found the proposal
  within the duty to bargain.  Contrary to the Agency's assertions, the
  Authority does not have an obligation, where an agency fails to meet its
  burden, to abdicate its role as a neutral decision-maker and independently
  locate and analyze arguably applicable regulatory provisions.  In this
  regard, there is no merit to the Agency's claims that the Authority's action
  in this case contravened previous determinations of this Court and
  misinterpreted the Authority's own precedent.
  II.  This Court does not have jurisdiction to address the Agency's allegations
  that the proposal is inconsistent with the Standards of Ethical Conduct or
  management's right to assign work because the Agency's arguments, now being made
  to this Court, were never raised before the Authority.  Moreover, the Agency
  failed to take the appropriate action of seeking reconsideration concerning
  these allegations with the Authority.  For the same reasons, the Agency's claims
  that the Authority failed to follow its regulations and precedent are not
  properly before this Court.    However, even if the Court opts to address the
  merits of these  claims, which were never presented to or adjudicated by the
  Authority, the arguments are without merit.
  With regard to the Agency's Standards of Ethical Conduct contention, the
  Agency here makes detailed arguments asserting that the proposal is
  inconsistent with numerous specific regulatory provisions.  Notwithstanding
  the Agency's assertions that the proposal's inconsistency with the
  Government-wide regulation is clear, the Agency fails again to address how
  regulatory provisions directly implicated by its arguments impact on the
  legality of the proposal.  Contrary to the Agency's arguments, it is far
  from certain that the proposal is inconsistent with the Standards of Ethical
  Conduct.
  As for its management's right claims, the Agency's asserts  that the
  proposal could implicate its right to assign work and the Authority failed
  to consider this assertion.  However, after noting that the Union had
  modified its original proposal to address the Agency's original management-
  right concerns and after  reviewing the Agency's Supplemental SOP, the
  Authority reasonably concluded that the Agency was no longer contending that
  the proposal contravened the Agency's management rights.  The Agency is
  seeking to have this Court both disregard the deference accorded the
  Authority in interpreting a parties' submission and adjudicate an issue
  never raised to the Authority.  Were this Court to nevertheless entertain
  this issue, in point of fact it is not clear, as a result of the Union's
  modifications to its original proposal deleting all references to training,
  that the modified proposal is inconsistent with the Agency's statutory right
  to assign work.
  Finally, also misplaced are the Agency's claims that the Authority failed to
  follow its regulations and its precedent.    Specifically, the Agency
  asserts that the Authority was obliged to require the Union to explain the
  proposal in this case and held the Agency responsible for this deficiency.
  However, because the Authority was able to understand the import of the
  plain wording of the Union's proposal, it was unnecessary to require the
  Union to explain how the proposal would operate.  As such, the Authority did
  not act inconsistently with its regulations or precedent and instead, only
  held the Agency accountable for failing to explain how the proposal was
  inconsistent with a Government-wide regulation.

ARGUMENT

I.  THE AUTHORITY PROPERLY DETERMINED THAT THE AGENCY HAD, AND FAILED TO MEET,
THE BURDEN OF ESTABLISHING THAT THE PROPOSAL WAS OUTSIDE THE DUTY TO BARGAIN
  The Authority correctly determined that the Agency had, and failed to meet,
  the burden of establishing that the proposal at issue was outside the duty
  to bargain.  First, the burden placed on the Agency in this case is in
  accord with statutory and regulatory provisions governing negotiability
  appeals, is consistent with precedent of the Authority and this Circuit, and
  effectuates the Statute's policy considerations of efficiency and
  administrative exhaustion.  Second, the Authority properly determined that
  the Agency failed to meet its burden in this case because the Agency made
  only a bare assertion that the proposal was outside the duty to bargain.  In
  this connection, precedent on which the Agency seeks to rely is
  distinguishable from this case.
  A.  An agency has the burden to establish its assertion that a proposal is
  outside the duty to bargain
  The statutory and regulatory provisions governing negotiability appeals, as
  well as precedent of the Authority and this Circuit, confirm that an agency
  has the burden to provide the Authority with the information, evidence, and
  arguments establishing its contention that a proposal is outside the duty to
  bargain.  Moreover, requiring and enforcing such burdens is consistent with
  the principles of administrative exhaustion.
    1.  The statutory and regulatory framework of negotiability appeals
  Section 7117(c) of the Statute provides that a union may appeal an agency's
  allegation that a proposal is outside the duty to bargain "in accordance
  with the provisions of this subsection."  5 U.S.C. § 7117(c)(1).  Following
  the union's filing of a petition for review with the Authority, an agency
  "shall" file with the Authority a statement withdrawing the allegation or
  "setting forth in full its reasons supporting the allegation[.]"  5 U.S.C. §
  7117(c)(3)(A).  Thereafter, the union "shall" file its response to the
  agency's statement.  5 U.S.C. § 7117(c)(4).
  Congress has delegated the Authority the responsibility in the first
  instance to determine whether a proposal comes within the statutory duty to
  bargain.  Library of Congress v. FLRA, 699 F.2d 1280, 1284 (D.C. Cir. 1983).
  The Authority has promulgated regulations implementing its statutory
  responsibilities, and these regulations require the parties to provide
  certain information to enable the Authority to resolve negotiability
  disputes.  5 C.F.R. Part 2424.  As relevant here, these regulations require
  an agency to file a statement with the Authority setting forth, in detail,
  the reasons supporting its allegation that the proposal is outside the duty
  to bargain.  "The statement shall cite the section of any law, rule or
  regulation relied upon as a basis for the allegation. . . ."  5 C.F.R. §
  2424.6(a)(2) (emphasis added).
      2.  Authority precedent establishes that an agency must specifically
      establish its contention that a proposal is outside the duty to bargain
  The Authority has repeatedly held, relying on NFFE, Local 1167 v. FLRA, 681
  F.2d 886 (D.C. Cir. 1982) (NFFE, Local 1667), that an agency has the burden
  of establishing that a proposal is outside the duty to bargain and if an
  agency fails to satisfy the regulatory requirements, it "acts at its
  peril."  See Patent Office Professional Assoc. and U.S. Dep't of Commerce,
  Patent and Trademark Office, 41 FLRA 795, 820 (1991) (citing NFFE, Local
  1167, 681 F.2d at 886) (POPA).  This is consistent with regulatory
  provisions describing the information necessary for the Authority to make a
  negotiability determination.  5 C.F.R. §§ 2424.4, 2424.6, and 2424.7.
  Specifically, the Authority has determined that the agency's burden, as set
  forth in 5 C.F.R. § 2424.6, is to provide the Authority with the
  information, evidence, and arguments supporting its allegation that the
  proposal falls outside the duty to bargain.  See Coordinating Committee of
  Unions and Dep't of the Treasury, Bureau of Engraving and Printing, 29 FLRA
  1436, 1441 (1987) (Coordinating Committee of Unions) (finding proposal
  within duty to bargain where agency failed to support its claim that
  proposal conflicts with a Government-wide regulation and provided no facts
  or argument in support of its claim).  Mere citation to a law or regulation,
  without an explanation in support of its contention of inconsistency, does
  not suffice.  See AFGE, Dep't of Educ. Council of AFGE Locals and U.S. Dep't
  of Educ., 38 FLRA 1068, 1105-06 (1990) (finding a proposal within the duty
  to bargain because the agency did not offer any reasons establishing how the
  proposal conflicted with an Executive Order) (AFGE, Dep't of Educ.).[4]
    This Court has taken note of the Authority's rules in this regard.  See
    U.S. Dep't of Defense v. FLRA, 982 F.2d 577, 579 (D.C. Cir. 1993) (Dep't
    of Defense) (the Authority's rules require an agency to provide specific
    citations in support of allegations of nonnegotiability).  Moreover, this
    Court has agreed that it is the Authority's responsibility to create and
    administer burdens in the negotiability context.  NFFE v. FLRA, 789 F.2d
    944, 948 (D.C. Cir. 1986).  Specifically, the Court stated that it would
    not "in the first instance, express a view on how the Authority is to
    proceed in allocating the burden of proof between [parties]" where the
    Authority reviews unfair labor practice  cases involving the negotiability
    of provisions.  Id.
    3.  Precedent of this Court establishes that the parties bear the burden
    of creating a record upon which the Authority can make a negotiability
    determination
  In NFFE, Local 1167, this Court rejected the argument that the Authority had
  an "obligation to undertake a substantive independent analysis of the
  content of the proposals" to determine their legality.  681 F.2d at 891.
  The Court held that under section 7117(c) of the Statute, the parties must
  satisfy two principal responsibilities.  First, "the parties bear the burden
  of creating a factual record sufficient for the Authority to resolve the
  negotiability dispute."  Id.  In this regard, the Court stated that the
  Authority is "not obligated to conduct an independent factual investigation
  in order to secure record proof with respect to either party's claims."  Id.
  Second, the Court, citing both 5 C.F.R. §§ 2424.6(a)(2) and 2424.7(b), held
  that "the parties should direct the Authority's attention with as much
  specificity as possible, to the statutes and regulations relevant to an
  agency's duty to bargain."  Id.  Specifically, the Court found that "[w]hile
  the Authority plainly is not foreclosed from making an independent inquiry
  into the law relevant to each agency's exercise of management rights, the
  parties should not expect the Authority, sua sponte, to locate, analyze and
  apply all arguably pertinent regulations from the myriad of federal
  regulations governing the numerous federal agencies within the Authority's
  jurisdiction."  Id.
  This Court has reiterated its view that the parties bear this burden.  AFGE,
  Local 2303 v. FLRA, 815 F.2d 718, 719 n.3 (D.C. Cir. 1987) (AFGE, Local
  2303).  In AFGE, Local 2303, the Court noted that the "precise basis for the
  agency's allegation [that the proposal is inconsistent with regulation] is
  impossible to discern; the [agency's] letter asserted in the most general
  terms that §§ 6 and 7 of the proposal conflicted with provisions of the
  'Federal Travel Regulations' and the 'Federal Personnel Management Manual, 5
  C.F.R. 551.'"  Id. (quoting the agency's allegation of nonnegotiability).
  In this connection, the Court stated that "[t]he adequacy of the legal
  support for the allegation of nonnegotiability would have been a matter for
  the Authority to determine had it not adjudged the union's petition
  untimely."  Id.
    4.  Placing the burden of specificity on parties maintains efficiency
    and is consistent with concepts of administrative exhaustion
  Requiring parties to meet particular burdens in the context of negotiability
  disputes balances the competing policies that Congress sought to effectuate
  by means of the appeals procedure set forth in the Statute.  According to
  this Court, the appeals procedure set forth in section 7117(c) of the
  Statute "could not possibly be expeditious if the FLRA were required in
  every case to supplement a party's incomplete analysis" and "sua sponte . .
  . locate, analyze and apply all arguably pertinent regulations from the
  myriad of federal regulations governing the numerous federal agencies within
  the Authority's jurisdiction."  NFFE, Local 1167, 681 F.2d at 891.
  Similarly, in AFGE, Local 2303 this Court rejected the assertion that
  compliance with the Authority's procedures "impedes the give-and-take
  necessary for effective bargaining," finding instead that the Authority's
  procedural rules were necessary to preserve the integrity of the
  negotiability "scheme Congress established in Section 7117(c)."   815 F.2d
  at 723.
  Allocating burdens to the parties in the negotiability context is also
  consistent with the concepts of administrative exhaustion.  By requiring
  parties to assert and establish their arguments before the Authority, the
  courts respect the role of the Authority and gain the benefit of the
  Authority's position concerning the issues under consideration.  Through
  this process, the courts avoid having to resolve matters, as the original
  adjudicator, that should have been raised to and might have been resolved by
  the Authority.  See McCarthy v. Madigan, 503 U.S. 140, 145 (1992)
  ("Exhaustion is required because it serves the twin purposes of protecting
  administrative agency authority and promoting judicial efficiency.").
  Viewing the process otherwise is inconsistent with section 7123(c) of the
  Statute, which demonstrates Congress's strong intent to have disputes
  resolved in the first place with the Authority.  See EEOC, 476 U.S. at 23.
  Of course, it is conceivable that as a result of inadequate administrative
  submissions, the Authority may direct parties to bargain over a matter that
  is not within the duty to bargain.[5]  However, the alternative to this
  process is to transform the Authority into a legal researcher and,
  ultimately, an advocate for one of the parties.  Vesting the Authority with
  this responsibility would require the Authority to abdicate the neutral
  decision-maker role that Congress envisioned.  See DoD v. FLRA, 659 F.2d at
  1161 (Congress intended the Authority exercise "judgment and balance" in
  resolving duty to bargain disputes).  Additionally, transferring this
  responsibility to the Authority could have significant resource
  implications.
  B.  The Agency failed to meet its burden to establish that the proposal is
  outside the duty to bargain
  The Authority properly found that the Agency failed to meet its burden of
  providing sufficient information, evidence, and arguments establishing that
  the proposal was inconsistent with regulation.  Specifically, in the single
  paragraph setting forth the Agency's allegation that the proposal was
  inconsistent with a Government-wide regulation, the Agency did not cite to
  any specific section of the Standards of Ethical Conduct and did not provide
  an explanation or argument supporting or establishing its allegation.  The
  Agency defends its admittedly "inartful" (Agency Br. p.18) and "albeit
  imperfect[]" (Agency Br. p.19) pleading before the Authority by claiming
  that the inconsistency with the regulations is "a matter of common sense"
  and "clear and blatant."[6]  Agency Br. p.20.
  Such conclusory and disingenuous reasoning is not a basis for the Authority
  to find a proposal outside the duty to bargain.  Indeed, an Authority
  determination that a proposal is inconsistent with a Government-wide
  regulation is typically subjected to close scrutiny on judicial review.  See
  National Treasury Employees Union v. FLRA, 30 F.3d 1510, 1515 (D.C. Cir.
  1994) (setting aside Authority's determination that union's proposal was
  inconsistent with Government-wide regulation, notwithstanding the fact that
  there was a "strong case for the FLRA's view").  As a result, on concluding
  that a proposal is not within the duty to bargain, the Authority is obliged
  to explain, with specificity, how the proposal is at variance with law.
  Dep't of Defense, 982 F.2d at 580.  In satisfaction of this obligation in
  this case, the Authority would have been required, sua sponte, to review and
  analyze a considerable body of law in order to ascertain whether there was
  sufficient support for the Agency's unspecified allegation that the proposal
  was outside the duty to bargain.  This exceeds what the Authority is
  required to do.  NFFE, Local 1167, 681 F.2d at 891.
    1.  The Agency did not cite to a specific regulatory section or provide
    any evidence or arguments in support of its allegation of
    nonnegotiability
  The Agency's 2-page submission contained only three sentences setting forth
  the support for its contention that the proposal was outside the duty to
  bargain.  In the first sentence, the Agency stated that "Executive Order
  12574 [sic], as modified by Executive Order 12731 and 5 C.F.R. 2635.01 [sic]
  et. seq., Standard of Conduct for Employees of the Executive Branch [sic], a
  government-wide regulation prohibits the acceptance of gifts by federal
  employees."  JA 48A.  This sentence incorrectly cited the Executive Order as
  12574 rather than 12674, misnamed the Government-wide regulation in
  question, and failed to cite to any particular section of the extensive
  regulation it generally referenced, instead citing to a non-existent section
  of Title 5 of the Code of Federal Regulations (CFR).  In the second
  sentence, the Agency stated that "Deleting all references to the FAM program
  as a training programs [sic], results in allowing the ATAs to accept free
  air travel for personal use."  Id.  The Agency neither explained this
  assertion nor offered any evidence or information substantiating its claim.
  Instead, the Agency simply relied on its bare allegation.  In the third and
  final sentence of its position statement, the Agency stated that "Free air
  travel for personal use is considered a gift prohibited by the Standards of
  Conduct for Emloyees [sic] of the Executive Branch."  Id.  As with the
  preceding two sentences, the Agency did not cite to any specific regulatory
  provisions with which the proposal was allegedly inconsistent.  Nor did the
  Agency offer any explanation, information, or arguments establishing the
  validity or viability of its statement that such travel amounts to a gift.
  The Agency's submission in this case fails to satisfy its statutory and
  regulatory obligations already discussed herein.  To counter this
  deficiency, the Agency argues that the Authority should have reviewed the
  Standards of Ethical Conduct, determined the applicable subpart of Part 2635
  of Title 5 of the CFR, and located and decided, sua sponte, which of the
  specific provisions in that subpart were inconsistent with the Union's
  proposal.  Agency Br. pp.19-20.  But as has been addressed herein, this is
  neither the responsibility nor the proper role of the Authority.  The effect
  of the Agency's argument is that the Authority should have abandoned its
  role as a neutral and assumed the roles of legal researcher and advocate for
  the Agency.  This the Authority properly declined to do.
      2.  Precedent relied on by the Agency is distinguishable
  The Agency argues that in concluding that the FAA failed to satisfy its
  burden in this case, the Authority contravened previous determinations of
  this Court and misinterpreted the Authority's own precedent.  Agency Br.
  pp.18-21.  On close examination, neither of these assertions has merit.
      a.  Department of Treasury
  To begin with, the Agency erroneously claims that the FAA's bare assertions
  to the Authority here are satisfactory in light of this Court's decision in
  Department of the Treasury, U.S. Customs Service v. FLRA, 762 F.2d 1119
  (1985) (Department of Treasury).  Agency Br. pp.18-19.  It is correct that
  the Department of Treasury decision is similar to the case sub judice in
  that the Court there determined that "an argument was presented to the
  Authority with sufficient clarity" notwithstanding the fact that the agency
  failed to cite to a specific provision in the CFR.  762 F.2d at 1122.
  However, the significant dissimilarities between this case and Department of
  Treasury render it inapposite here.
  First, in Department of Treasury, the Authority had not, as it did here,
  concluded that the agency failed to meet its burden because it offered only
  bare assertions that the proposal was inconsistent with Government-wide
  regulation.  National Treasury Employees Union and Department of the
  Treasury, 11 FLRA 247 (1983) (National Treasury Employees Union).  On the
  contrary, unlike the FAA, the agency in National Treasury Employees Union
  made and the Authority analyzed arguments concerning whether the proposal
  was inconsistent with various specific provisions of the Federal Personnel
  Manual (FPM).  11 FLRA at 249-50.  As a result of this analysis, certain
  aspects of the union's proposal in that case were found to be inconsistent
  with the FPM.  Id.  The dispute in Department of Treasury was that the
  agency raised a different regulatory provision in court than it had argued
  to the Authority; the Court was thus analyzing whether the agency could
  overcome the statutory prohibition in section 7123(c) of the Statute
  precluding court review of matters not urged before the Authority.  762 F.2d
  at 1122.  Because the Authority had not asserted that the Agency's
  administrative submissions were inadequate, the Court in Department of
  Treasury did not consider whether the agency's pleadings before the
  Authority sufficiently set forth, with requisite specificity and argument,
  the information necessary to enable the Authority to make an intelligent
  negotiability determination.
  Second, two points were central to the Court's excusing the agency's failure
  to cite to a specific regulatory provision in Department of Treasury:  the
  Court's conclusion that the regulatory provision in question involved a
  "well known" employment practice requirement established by the Office of
  Personnel Management; and, the Court's view that the FLRA should have been
  aware of this employment practice provision.  Id.  The Court noted that the
  agency's failure would not have been excusable had the regulation involved
  "an obscure, technical provision of civil service law that FLRA might be
  unaware of."  Id.  The regulation at issue here falls into the latter
  category, as it does not implicate employment issues that the Authority
  typically administers.  In point of fact, as of the time of the issuance of
  the decision in this case, the Authority had never before issued a decision
  implicating any provision of 5 C.F.R. Part 2600.
      b.  POPA
  The Agency also erroneously argues that the Authority misapplied its own
  POPA precedent.  Agency Br. p.21.  But in POPA, as in this case, the
  Authority refused to consider an agency's unsupported and unspecified
  assertion that a proposal was inconsistent with law.  41 FLRA at 820.  Also
  in POPA, as here, the Authority ultimately concluded that a proposal was
  within the duty to bargain because the agency acted at its peril when it
  failed to bear its burden of creating a record upon which the Authority
  could make a negotiability determination.  Id.  It is true that in POPA the
  Authority briefly reflected on the agency's assertion that the proposal was
  inconsistent with the Privacy Act; however, the Authority did not undertake
  the kind of independent, section-by-section legal research that the Agency
  here demands of the Authority.  Significantly, the Authority's one-paragraph
  discussion of the Privacy Act in POPA contains not a single reference to
  individual provisions of the Privacy Act (5 U.S.C. § 552a).  Id. at 821.
  Moreover, and as this Court has held, "[w]hile the Authority plainly is not
  foreclosed from making an independent inquiry into the law," the parties
  have no right to expect the Authority to do so.  NFFE, Local 1167, 681 F.2d
  at 891.  In short, the Authority's action in this case is entirely
  consistent with its POPA decision and neither the POPA decision nor the
  precedent of this Court offers support for what the Agency here asserts the
  Authority was obliged to do.
II.  THE AGENCY'S ADDITIONAL ALLEGATIONS ARE NOT PROPERLY BEFORE THIS COURT AND
OTHERWISE LACK MERIT
  The Agency urges this Court to address the merits of its arguments claiming
  that the proposal is inconsistent with the Standards of Ethical Conduct and
  management's right to assign work.  In addition, the Agency claims that the
  Authority failed to follow its regulations.
  Under section 7123(c) of the Statute this Court does not have jurisdiction
  to consider any of the arguments advanced by the Agency because these
  arguments were not raised to the Authority.  Moreover, to the extent that
  the Agency argues that the Authority erred in its final decision or
  procedures, the Agency did not take the appropriate action of seeking
  reconsideration with the Authority.  In any event, even if this Court
  addresses the merits of the Agency's contentions, they are without merit and
  do not establish that the proposal is outside the duty to bargain or that
  the Authority failed to follow its regulations in this case.
  A.  Inconsistency with the Standards of Ethical Conduct
    1.  This Court does not have jurisdiction to address the Agency's claim
    because the Agency did not raise that claim to the Authority
  The Agency makes detailed arguments to the Court that were never raised to
 he Authority in support of its allegation that the proposal is inconsistent
  with the Standards of Ethical Conduct.  In sharp contrast with the one
  paragraph, unspecific, and unsupported assertions the FAA made to the
  Authority, the Agency now cites numerous regulatory provisions implementing
  the Standards of Ethical Conduct[7] and offers detailed arguments explaining
  how the regulations that it cites are inconsistent with the proposal at
  issue.  Agency Br. pp.16-18.  None of this specificity and information was
  offered to the Authority and accordingly, this Court lacks jurisdiction to
  consider the Agency's arguments that the proposal is inconsistent with
  specific provisions of the Government-wide regulation.
  "No objection that has not been urged before the Authority . . . shall be
  considered by the court [of appeals] . . . ."  5 U.S.C. § 7123(c).  The
  "plain language [of section 7123(c)] evinces an intent that the FLRA shall
  pass upon issues arising under the [Statute]."  EEOC, 476 U.S. at 23.  This
  Court has repeatedly held that a party failing to make specific arguments to
  the Authority is foreclosed from making those arguments before the Court.
  See U.S. Dep't of Commerce v. FLRA, 7 F.3d 243, 245 (D.C. Cir. 1993)
  (rejecting the agency's claims that its general assertions "implicitly"
  raised an issue before the Authority) (Dep't of Commerce).  Thus, the Court
  will refuse to consider even arguments that encompass a "somewhat different
  twist" to the argument advanced before the Authority.  Overseas Educ. Ass'n,
  827 F.2d at 820.
  Although the Court has recognized that "[p]resentations to courts on
  petitions for review may, and commonly do, expand upon the rationale
  underlying arguments made before the [Authority,]. . . it is still the
  [Authority's] judgment the court must review and one cannot expect that
  judgment to be forthcoming in the face of an imprecise or incoherent
  objection."  Dep't of Defense, 982 F.2d at 580.  Accordingly, when reviewing
  Authority negotiability determinations, this Court has refused to consider
  agency arguments that a proposal is inconsistent with a specific provision
  of law when the submission to the Authority was not as  precise and failed
  to "cite the statute [37 U.S.C. § 418] and explain why [the statutory
  provision] removes the proposal from mandatory bargaining."  Id. at 579-80.
  Here, the Agency's arguments submitted to the Court go far beyond those
  presented to the Authority.  As a result, the Authority did not have the
  benefit of either parties' submissions specifically addressing the arguments
  that the Agency now makes to the Court.[8]  Compounding the problem, the
  Court has been deprived of the benefit of the Authority's judgment on the
  matter, and is, in effect, required to perform the role of the Authority.
  Accordingly, this Court should decline jurisdiction to hear the Agency's
  arguments and objections that were not raised to the Authority.
    2.  The Agency did not request reconsideration in this case
  In urging the Court to address the merits of its arguments that the proposal
  is inconsistent with the Standards of Ethical Conduct, the Agency argues
  that the Authority's decision in this case is "incorrect as a matter of fact
  and law."  Agency Br. p.18.  If this is the Agency's position, it had ample
  grounds to move the Authority for reconsideration under the Authority's
  regulations.  5 C.F.R. § 2429.17.
  Pursuant to its regulation, the Authority will grant reconsideration after
  it has issued a final decision where a party has established that
  extraordinary circumstances exist. 5 C.F.R. § 2419.17.  The Authority has
  found that extraordinary circumstances exist and granted reconsideration
  where a moving party has established, among other things, that evidence,
  information, or issues crucial to the decision had not been presented to the
  Authority, or the Authority has erred in its process, conclusion of law, or
  factual finding.  U.S. Dep't of the Air Force and NAGE, Local R7-23, 50 FLRA
  84, 86-87 (1995).  In analagous cases, the Authority has granted
  reconsideration.  See U.S. Dep't of Health and Human Services, Social
  Security Administration and AFGE, Local 1336, 39 FLRA 22, 25 (1991)
  (granting reconsideration because the Authority concluded that its decision
  was not based on the applicable regulatory provision).
  When reviewing the Authority's negotiability determinations, this Court has
  declined to entertain arguments not made to the Authority where an agency
  failed to seek reconsideration with the Authority, unless filing for
  reconsideration would have been futile.  Dep't of Commerce, 7 F.3d at 245;
  cf. NLRB v. FLRA, 2 F.3d 1190, 1196 (D.C. Cir. 1993).  Because the Agency
  failed to file such a motion and has not claimed it would have been futile
  to do so, this Court should properly decline to assert jurisdiction over the
  Agency's claims that the proposal is inconsistent with the specific
  regulatory provisions cited in the Agency's Brief.
    3.  The record does not demonstrate that the proposal is inconsistent
    with the Standards of Ethical Conduct
  The Agency, raising arguments that were never made to the Authority, asserts
  that it is "clear and blatant" that the proposal is inconsistent with the
  Standards of Ethical Conduct.  Agency Br. p.20.  Contrary to the Agency's
  claims, it is anything but apparent that the proposal is in conflict with
  the Government-wide regulation.  Specifically, it is not clear, when
  comparing the Government-wide regulation to the proposal that:  the proposal
  would impermissibly permit ATAs to solicit or accept the air travel; all
  aspects of the travel would be provided by a prohibited source; the travel
  constitutes a gift; or, the  exceptions to the prohibition set forth in the
  regulation or other statutes would not apply.[9]
  The Agency argues that the proposal at issue is "flatly inconsistent" with
  Government-wide prohibitions on soliciting and accepting gifts.  Agency Br.
  p.16.  As a threshold matter, it is  not a certainty that the proposal would
  implicate ATAs accepting or soliciting air travel from a prohibited source
  in violation of 5 C.F.R. § 2635.201.  Although the proposal entitles
  individual ATAs to travel on commercial air carriers, private aircraft, and
  military air carriers at no expense to the ATAs for the ATAs' personal use,
  it is debatable whether it is the employees or the Agency who would be the
  recipients or the solicitors of the air travel.  In this regard, it is
  reasonable to conclude that the Agency solicits the air carrier either when
  it establishes the national standardized familiarization program for ATAs
  required by the proposal or when it contacts an air carrier pursuant to an
  ATA's request for travel.  In this respect, the travel may fall within 49
  U.S.C. § 326(a), which permits the Secretary of Transportation to accept and
  use conditional or unconditional gifts of services in carrying out aviation
  duties and powers.
  The Agency alleges in its Brief (p.17) that the "commercial" air carriers on
  which the proposal would permit the ATAs to travel are regulated by the FAA
  and have an interest in the performance of ATAs' official duties.  Thus, the
  Agency claims that the commercial air carriers would constitute a
  "prohibited source," within the meaning of 5 C.F.R. § 2635.203(b).  However,
  the Agency does not make a similar allegation with regard to travel provided
  under the program by private aircraft or military air carrier.  Apparently,
  the Agency is not contending that acceptance of travel by ATAs on
  noncommercial carriers is inconsistent with the Standards of Ethical
  Conduct, because it would not be provided by a "prohibited source."  Thus
  even if the Agency's assertions are correct, certain aspects of the proposal
  are not challenged as inconsistent with the Standards of Ethical  Conduct.
  Additionally, it is uncertain whether all of the air travel encompassed by
  the proposal necessarily constitutes a gift.  The Standards of Ethical
  Conduct exclude from the definition of gift, any gift accepted by the
  Government under specific statutory authority, including "[t]ravel . . .
  accepted by an agency [not an individual employee,] under the authority of
  31 U.S.C. § 1353 in connection with an employee's attendance at a meeting or
  similar function relating to his official duties which takes place away from
  his duty station."  5 C.F.R. § 2635.203(b)(8)(i).  Contrary to the Agency's
  assertion that the proposal has no business purpose (Agency Br. p.14),
  Section 5 of the proposal provides, in part, that the program includes
  travel where the ATA is assigned duties at the outbound destination.  JA
  55-56.
  Alternatively, "[g]ifts authorized by supplemental agency regulation" are
  exempt from the prohibitions of the Standards of Ethical Conduct.  5 C.F.R.
  § 2635.204(k).  Thus, the Agency may have within its discretion the ability
  to create a national standardized familiarization program that is not
  prohibited by the Standards of Ethical Conduct.  Indeed this exemption may
  explain how FAM programs for ATCs are not inconsistent with the Standards of
  Ethical Conduct.  The fact that such a program exists belies the Agency's
  claim that the proposal as applied to ATAs is "flatly inconsistent" with the
  Standards of Ethical Conduct.[10]
  In sum, even if this Court were to entertain the Agency's belated merits
  arguments, that it failed to make to the Authority, it remains far from
  certain that the proposal at issue is inconsistent with the Standards of
  Ethical Conduct.
  B.  The proposal is not inconsistent with management's right to assign work
  The Agency asserts the Authority erred concerning the Agency's argument that
  the proposal was inconsistent with management's right to assign work.
  Agency Br. pp.22-23.  Specifically, the Agency claims that the Authority
  improperly ignored the FAA's objection to the Union's original proposal as
  violative of management's right to assign work.  In this regard, the Agency
  asserts that the FAA's objections to the proposal on this basis should have
  been considered by the Authority, notwithstanding the fact that the Union
  substantially modified its proposal and the fact that the Agency made no
  reference to its management's right argument in its Supplemental SOP.
  Moreover, the Agency asserts that to the extent that the proposal involves
  training, the Authority has uniformly held such proposals to be inconsistent
  with management's right to assign work.  Neither of these arguments has
  merit.  However, as a threshold matter, the Agency's assertions concerning
  the Authority's interpretation of the FAA's argument is not properly before
  this court.
    1.  This Court lacks jurisdiction to consider the Agency's allegations
    that the Authority misconstrued the FAA's position
  The Agency's assertion that the Authority improperly construed the FAA's
  position is not properly before this Court.  As set forth in Section II.A.1.
  supra, the Agency's assertion that the Authority misconstrued the FAA's
  position has not been raised to the Authority and therefore, pursuant to
  section 7123(c) of the Statute, may not be raised in the first instance in
  this Court.  Specifically, and as set forth in Section II.A.2., supra, if
  the Agency asserts that the Authority misconstrued the FAA's position, the
  Agency had an obligation to raise this issue, via a motion for
  reconsideration to the Authority, as a condition precedent to raising this
  objection before the Court.  Dep't of Commerce, 7 F.3d at 245-46.
  Indeed, the Authority has previously granted agency motions to reconsider in
  analogous situations.  See AFGE, Local 3673 and U.S. Department of the Navy,
  Naval and Warfare Center, 50 FLRA 720, 722 (1995)(Department of the Navy)
  (granting reconsideration where the Authority's conclusion that a regulation
  did not apply to a proposal was premised on the Authority's erroneous
  interpretation of contentions set forth in the agency's statement of
  position) (Department of the Navy).  Here the Agency, makes a similar
  contention to that made in Department of the Navy -- that the Authority
  misinterpreted its arguments supporting its claim that the proposal was
  outside the duty to bargain.  Thus, the Agency's assertions, made for the
  first time to the Court, could and should have been asserted in a motion for
  reconsideration with the Authority.
    2.  The Authority's construction of the Agency's arguments was
    reasonable and is entitled to deference
  Were this Court to nevertheless entertain the Agency's  objection, the
  Authority reasonably construed the Agency's position as having relinquished
  its earlier management's right objection in light of the Union's
  modification of its original proposal.  The Agency's Supplemental SOP,
  submitted in response to a modified proposal that deleted all references to
  training, referred to the proposal as a "new proposal" that did not contain
  any portions relating to training.  JA 43.  Further, in its Supplemental
  SOP, the Agency did not assert that the proposal, as modified, remained
  inconsistent with the FAA's management right to assign work.  In fact, the
  Agency noted that the new proposal deleted all references to training.
  These circumstances, combined with the Union's withdrawal and modification
  of those portions of its original proposal which the Agency had asserted
  contravened its right to assign work (JA 34-35), led the Authority to
  reasonably conclude that the Agency's management right objections were no
  longer applicable because the modified proposal did not involve training.
  As such, the Court should reject the Agency's baseless assertion that the
  Authority failed "to engage in reasoned decision making."  Agency Br. p. 23.
  Even if the Agency's pleading before the Authority in this case were subject
  to different interpretations, this Court has previously deferred to the
  Authority's interpretation in comparable cases.  For example, in AFGE, Local
  2303, the Court upheld the Authority's dismissal of a union's petition based
  on the Authority's characterization and interpretation of that petition.
  815 F.2d at 722.  In rejecting the union's challenge to the Authority's
  action, the Court noted that "an agency's interpretation of a written
  document is a determination of a question of law" which is entitled to due
  deference when the "interpretation implicates factors within the area of an
  agency's expertise."   Id. at 719-20 n.11 (citing NLRB v. Hasbro Indus., 672
  F.2d 978, 983-84 & 984 n.8 (1st Cir. 1982)).
   Like the Authority's interpretation in AFGE, Local 2303, the Authority's
   construction of the Agency's Supplemental SOP in this case is a reasonable
   and legal conclusion, clearly implicating  the Authority's expertise in
   reviewing and interpreting parties' submissions.  Consistent with AFGE,
   Local 2303, the Authority's  determination is entitled to deference and
   affirmance.
    3.  The proposal does not involve training and is not  inconsistent with
    management's right to assign work
  The Agency does not directly claim that the Union's modified proposal is
  violative of its management rights.  Rather, the Agency asserts that the
  proposal "could be construed" as providing training benefits, and to that
  extent, it interferes with the right to assign work under 5 U.S.C. 7106(a)
  (2)(B).  Agency Br. p.22.  The Agency then broadly asserts that "proposals
  concerning training . . . are outside management's duty to negotiate."  Id.
  Neither of these assertions has merit.
  The proposal was not construed as providing training benefits.  As noted
  earlier, the FAA, in its two-page Supplemental SOP, stated three times that
  the Union's modified proposal deleted all references to training; the FAA
  went on to claim that because the proposal deleted all references to
  training, the air travel would result in its employees receiving an
  unauthorized free gift.  JA 48-48A.  Moreover, the Authority concluded that
  the Union had eliminated those aspects of the proposal related to training.
  JA 52 n.1.  Given the Authority's and the Agency's interpretations of the
  Union's concession, there was no reason for the Authority to construe the
  proposal as offering a training benefit and, accordingly, it did not do so.
  Even if the proposal had been construed to in some respects involve
  training, it is not certain that the proposal, as modified, would have run
  afoul of management's right to assign work and thus fallen outside of the
  duty to bargain.  It is true that as a general rule, proposals requiring
  formal training or assignments to specific types of training programs during
  duty hours have been declared outside the duty to bargain as inconsistent
  with management's right to assign work.  See AFGE, Local 2094 and Veterans
  Admin. Medical Center, 22 FLRA 710, 719 (1986), aff'd on other grounds sub
  nom. AFGE, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987).  However, the
  proposal here does not encounter such pitfalls.  Section 6 of the proposal
  provides that the Agency will approve travel through the FAM program on
  approved leave days, regular days off, and for duty days only if the Agency
  assigns duties at the outbound destination.  JA 56.  Travel taken on
  approved leave days and regular days off does not run afoul of management's
  right to assign work because it is not taken during duty hours.  With regard
  to travel taken on duty days, Section 5 of the proposal provides that the
  employee will be in "official travel status."  JA 55.  Moreover, the
  proposal does not require a training assignment.  Rather, the proposal
  dictates the manner in which an ATA, in official travel status, will travel
  while engaging in a task that has already been assigned by the Agency.  In
  short, it is by no means a certainty that the proposal, as modified, is
  inconsistent with management's right to assign work and therefore outside
  the duty to bargain.
  C.  The Authority followed its regulations
  The Agency argues that the Authority failed to follow its own regulations
  and, therefore, this case should be remanded to the Authority.  Agency Br.
  pp.23-26.  The Agency's arguments in this respect -- as with its assertions
  that the proposal is inconsistent with both a Government-wide regulation and
  its right to assign work -- are not properly before this Court because the
  Agency has not previously raised this objection to the Authority.  In any
  event, the Agency's contention that the Authority failed to follow its
  regulations is without merit.
    1.  This Court lacks jurisdiction to consider the Agency's allegations
    that the Authority failed to follow its regulations
  In its brief, the Agency asserts that the Authority failed to follow its
  regulations and precedent in this case.  In the Agency's view, the Authority
  was obliged to dismiss the Union's negotiability petition because the Union
  failed to set forth the meaning of the proposal, provide an explanation of
  how the proposal would operate, or serve the Agency with a copy of the
  modified proposal.  Agency Br. pp.23-25.  However, a review of the  Agency's
  submission to the Authority demonstrates that the FAA never raised these
  objections to the Authority.  JA 43-45; 48-48A.
  Moreover, the Agency did not file a motion for reconsideration under 5
  C.F.R. § 2429.17 asserting, after the Authority had issued a final decision,
  that the Authority had failed to follow its regulations in this case.  The
  Authority has previously granted motions for reconsideration in analogous
  situations.  See AFGE, Local 3601 and U.S. Dep't of Health and Human
  Services, Public Health Service, 38 FLRA 177, 181 (1990) (Public Health
  Service) (granting reconsideration where agency asserted that the
  Authority's decision was not in accord with Authority's regulations because
  union failed to serve agency with copy of union's amended negotiability
  petition).  Here, the Agency's arguments regarding the Authority's failure
  to follow its regulations involve a claim, like that raised in Public Health
  Service, that the Authority erred in its process.  As such, the Agency's
  argument could and should have been raised in a motion for reconsideration
  under 5 C.F.R. § 2429.17.
  As set forth in Section II.A.1, supra, under 5 U.S.C. § 7123(c) "[n]o
  objection that has not been urged before the Authority . . . shall be
  considered by the court [of appeals] . . . ."  Section II.A.2., supra, notes
  that the Agency had an obligation to raise this issue, via a motion for
  reconsideration to the Authority, before raising this objection before the
  Court.      2.  The Authority acted consistent with its  regulations and
  precedent
  As noted in the preceding subsection, the Agency contends that the Authority
  was obliged to dismiss the Union's negotiability petition in this case.
  Specifically the Agency argues that the Authority erred by:  failing, as its
  regulations required, to demand additional information and/or dismiss the
  union's deficient petition (Agency Br. pp.23-24); acting inconsistently with
  Authority precedent (Agency Br. pp.25-26); and holding the FAA responsible
  for the petition's deficiencies (Agency Br. pp.25-26).  Assuming the Court
  were to entertain these arguments that were not made to the Authority, none
  of them has merit.
  In asserting that the Authority failed to follow its regulations in this
  case, the Agency misinterprets the intent of the Authority's regulations
  and, in so doing, attempts to substitute its judgment for that of the
  Authority.  It is correct, and the Authority noted, that the Union failed to
  "explain[] how the proposal [was] intended to operate."  JA 55.  However,
  the Agency here disregards that the reason for requiring the Union to
  explain the proposal is to "enable the Authority to understand the . . .
  proposal."  5 C.F.R. § 2424.4(a)(2)(ii).  Here the plain wording of the
  proposal was clear and the Authority articulated how every section of the
  proposal would operate and did not indicate an inability to understand the
  meaning of the proposal.  JA 55.[11]  As such, the Union's failure here did
  not impede the Authority from understanding the proposal.  Even though the
  Agency might have desired different procedural determinations and action by
  the Authority, the course of action now demanded by the Agency was, in the
  Authority's view, unnecessary.  And, an administrative agency's
  interpretation of its own regulation is entitled to substantial deference.
  Exxon Corp. v. FERC, 114 F.3d 1252, 1258 (D.C. Cir. 1997).
  Nor did the Authority act inconsistent with its precedent. To be sure, as
  the Agency asserts (Agency Br. pp.25-26), the Authority has dismissed
  negotiability petitions where unions failed to explain the proposal at
  issue.  However, in all the cases cited by the Agency, the Authority was
  unable, as a result of the union's failure to define or explain the
  proposal, to understand the import of the proposal at issue.  See AFGE,
  Dep't of Educ., 38 FLRA at 1106; AFGE, Local 3760 and Dep't of Health and
  Human Services, Social Security Administration, 33 FLRA 498, 501 (1988);
  NFFE, Local 15 and Dep't of the Army, U.S. Army Armament, Munitions and
  Chemical Command, Rock Island, IL, 30 FLRA 1046, 1076 (1988).  Here, by
  contrast and as noted in the preceding paragraph, the Authority was able to
  discern how the proposal would operate and therefore, in its discretion,
  determined not to seek further information or dismiss the petition.
  Finally, the Agency incorrectly claims that the Authority "shifted the blame
  for the Authority's inability to comprehend the proposal to the FAA."
  Agency Br. p.26.  But as has already been pointed out, the Authority, based
  on the record before it, did understand the proposal at issue.  What the
  Authority was not able to discern, based on the FAA's bare, unsupported
  assertion in the record, was how the proposal at issue was inconsistent with
  a Government-wide regulation.  As a result, the Agency was held accountable
  for its own failure to support and explain its contentions in this case.

CONCLUSION

For the foregoing reasons, the Agency's petition for review should be
denied.


  Respectfully submitted.


            DAVID M. SMITH
            Solicitor



            SARAH WHITTLE SPOONER
            Attorney


            Federal Labor Relations Authority
            607 14th St., N.W.
            Washington, D.C. 20424
            (202) 482-6620

DATE: March 1998




IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

U.S. DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
WASHINGTON, D.C.,
        Petitioner

      v.                             No. 97-1522

FEDERAL LABOR RELATIONS AUTHORITY,
        Respondent
_______________________________



CERTIFICATE OF SERVICE

I certify that the original and fifteen copies of the Brief of the Federal
Labor Relations Authority have been served this day, by mail, upon the
following counsel:

      William Kanter, Esq.
      Robin M. Richardson, Esq.
      Appellate Staff
      Civil Division, PHB Room 9606
      Department of Justice
      601 D Street, N.W.
      Washington, D.C. 20530-0001



                            Janet L. Smith
                            Paralegal Specialist

I certify that the Brief of the Federal Labor Relations Authority does not
exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d).




                            Sarah Whittle Spooner
                            Attorney




[1]    Pertinent statutory provisions are set forth in Addendum A to this brief.
[2]    "JA" references are to the Joint Appendix filed by the petitioner.
[3]    The national standardized familiarization program is an existing program
established pursuant to FAA Order 7210.3 for air traffic specialists, a category
which includes ATCs.  JA 29, 36.  The program permits participants to fly in the
cockpit of an air carrier, a private aircraft, or a military aircraft so that
they may observe the operation of the air traffic system from that environment.
JA 7.
[4]    The Authority also places burdens on the union consistent with those
placed on the agency.  See Section II.C., infra.   Specifically, the Authority
may dismiss a petition for review where the union files an incomplete petition
for review and fails to respond to requests to complete the record.  5 C.F.R. §
2424.4.  See e.g., AFGE, AFL-CIO, Local 3760 and Dep't of Health and Human
Services, Social Security Administration, 32 FLRA 813, 815 (1988) (the petition
for review did not contain a description of the work situation that would enable
the Authority to understand the context in which the proposal would apply)
(AFGE, Local 3760).  And where a union fails to meet its burden with regard to
its response to the agency's statement of position, the Authority will accept an
agency's uncontroverted factual assertions.  See NFFE, Local 1167, 681 F.2d at
886.
[5]      Even if the Authority were to order an Agency to bargain over a
proposal that is inconsistent with law, the Agency has the  regulatory right to
request that the Authority reconsider its decision.  5 C.F.R. § 2429.17.  See
Section II.A.2., infra.
[6]    In fact, whether the proposal is inconsistent with the Government-wide
regulation is anything but clear.  See Section II.A.3, infra.
[7]    In its zeal to attack the propriety of the proposal, the Agency also
cites to various provisions of the United States Code (5 U.S.C. § 7353 and 49
U.S.C. § 326(a)) (Agency Br. pp.16, 21) that were never referenced by the FAA in
its submission to the Authority.  Thus, the Agency inferentially suggests that
the Authority was obliged to, sua sponte, research and evaluate Title 5 and 49
as well as Part 2635 of Title 5 of the C.F.R.
[8]    Because of this, any response to the Agency's arguments at this time will
amount to nothing more than post hoc rationalizations of Authority counsel.
U.S. Dept. of Veterans Affairs v. FLRA, 1 F.3d 19, 23 (D.C. Cir. 1993) ("As a
rule, 'courts may not accept appellate counsel's post hoc rationalizations for
agency action.'") (citing K N Energy, Inc. v. FERC, 968 F.2d 1295, 1303 (D.C.
Cir. 1992)).
[9]    On declining to perform an independent review of the Government-wide
regulation, the Authority noted many of these unaddressed questions as another
reason for rejecting the Agency's bare and unsupported assertion that the
proposal contravened the Standards of Ethical Conduct.  JA 54 n.2.
[10]    Similarly unpersuasive is the Agency's submission of a report created by
the Department of Transportation's Office of Inspector General regarding the FAM
program as established for ATCs.  Agency Br. p.9 n.6.  According to the Agency,
that report helps to illustrate how a "bona fide training program poses the risk
of significant abuse in contravention of the Standards of Ethical Conduct."  Id.
However, the Agency's reliance on that report  does not advance its arguments
here.  First, the program as established for ATCs is not at issue in this case.
Second, nothing in the report indicates that the ATC program constitutes a gift
under or is otherwise inconsistent with the Standards of Ethical Conduct.  In
this regard, the report does not cite any provision in 5 C.F.R. Part 2635.
Rather, according to the report, it is the failure to follow established policy
and procedures