American Federation of Government Employees, Council of GSA Locals, Council 236 v. FLRA, No. 99-1244 (D.C. Cir. 2000) [unpublished decision]


ORAL ARGUMENT SCHEDULED FOR FEBRUARY 28, 2000

No. 99-1244

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

_______________________________

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
COUNCIL OF GSA LOCALS, COUNCIL 236,
              Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
              Respondent
_______________________________



ON PETITION FOR REVIEW OF A DECISION AND ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY



BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY


              DAVID M. SMITH
                Solicitor

              WILLIAM R. TOBEY
                Deputy Solicitor

              PAMELA P. JOHNSON
                Attorney


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




ORAL ARGUMENT SCHEDULED FOR FEBRUARY 28, 2000
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 American Federation of
    Government Employees, Council of GSA Locals, Council 236 (union) and the
    General Services Administration (agency).  The union is the petitioner
    in this court proceeding; the Authority is the respondent.

B.  Ruling Under Review
    The ruling under review in this case is the Authority's Decision and
    Order on a Negotiability Issue in American Federation of Government
    Employees, Council of GSA Locals, Council 236 and General Services
    Administration, Case No. 0-NG-2387-0001, issued on April 30, 1999.  The
    Authority's decision is reported at 55 FLRA (No. 73) 449.

C.  Related Cases
    This case has not previously been before this Court or any other court.
    Counsel for the Authority is 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 ISSUE  2

STATEMENT OF THE CASE  2

STATEMENT OF THE FACTS  3

A.  Background  3

B.  The Authority's Decision  4

STANDARD OF REVIEW  6

SUMMARY OF ARGUMENT  7

ARGUMENT  9

THE AUTHORITY PROPERLY DETERMINED THAT THE
SUMMARY PERFORMANCE RATING LEVELS FOR
EMPLOYEES PROPOSED BY THE UNION IN THIS CASE
ARE NOT "METHODS" OR "MEANS" OF PERFORMING
WORK UNDER SECTION7106(b)(1) OF THE STATUTE  9

A.  The Authority Properly Construed and Applied, Consistent
With its Decisional Precedent, the "Methods" and "Means"
Provisions of Section 7106(b)(1) in Deciding this Case  10

1.  The Authority's construction of "methods" is
consistent with the Statute's language and
legislative history, and with Authority precedent  10

2.  The Authority properly applied the "methods" provision of the
Statute in this case  12

3.  The Authority's construction of "means" is
consistent with the Statute's language and
legislative history, and with Authority precedent   14

4.  The Authority correctly applied the "means"
provision of the Statute in this case  16

B.  The Union's Arguments for Overturning the Authority's
Decision Are Without Merit  16

1.  There is no necessary connection between the
    rights to direct employees and assign work under
    section 7106(a)(2)(A) and (B) and the "methods"
    and "means" provisions of section 7106(b)(1)  17

a.  The Court does not have jurisdiction to
    consider the union's argument  17

b.  The fact that the union's rating level
    proposal affects management's rights
    to direct employees and assign work
    does not imply that the proposal also
    constitutes a "method" or a "means"
    of performing work  18

2.  The Authority's decision in this case is consistent
    with its definition of "means" under section
    7106(b)(1)  21

3.  The union's assertion that its rating level
    proposal provides employees with an incentive
    for greater productivity does not establish that
    the proposal is a "method" or "means" of
    performing work under section 7106(b)(1)  23

a.  The Court does not have jurisdiction to
    consider the union's argument  23

b.  The union's incentive argument lacks merit  23

CONCLUSION  25



ADDENDUM

Relevant portions of the Federal Service Labor-Management Relations
    Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) and pertinent
    regulations  A-1



TABLE OF AUTHORITIES

American Fed'n of Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85
    (D.C. Cir. 1998)  6

Bureau of Alcohol, Tobacco, and Firearms v. FLRA, 464 U.S. 89
    (1983)  7

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
    467 U.S. 837 (1984)  6

*  EEOC v. FLRA, 476 U.S. 19 (1986)  17

EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984)  6

Federal Employees Metal Trades Council v. FLRA, 778 F.2d 1429
       (9th Cir. 1985)  24

*   Georgia State Chapter Assoc. of Civilian Technicians v. FLRA,
  184 F.3d 889 (D.C. Cir. 1999)  18

Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983)  7

National Treasury Employees Union v. FLRA, 30 F.3d 1510
       (D.C. Cir. 1994)  7

National Treasury Employees Union v. FLRA, 848 F.2d 1273
       (D.C. Cir. 1988)  7

National Treasury Employees Union v. FLRA, 691 F.2d 553
       (D.C. Cir. 1982)  20

National Aeronautics and Space Admin., Washington, D.C. and
       NASA, Office of the Inspector General v. FLRA, 119 S. Ct. 1979
       (1999)  6, 7

Overseas Educ. Ass'n, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987)  17

Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988)  6

U. S. Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin.,
       Nat'l Weather Serv., Silver Spring, Md. v. FLRA, 7 F.3d 243
       (D.C. Cir. 1993)  17, 18



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

American Federation of Government Employees, Local 1164 and
       Social Security Administration, District Office, New Bedford, Mass.,
       54 FLRA 1327 (1998)  11, 13

American Fed'n of Gov't Employees, Local 1917 and
    U.S. Dep't of Justice, Immigration and Naturalization Serv.,
    New York, N.Y., 55 FLRA 228 (1999), petition for review
    dismissed, No. 99-1160 (D.C. Cir. July 1, 1999)  15

American Fed'n of Gov't Employees, Local 1920 and U.S. Dep't
       of Defense, Army and Air Force Exchange Serv., Fort Hood
    Exchange, Fort Hood, Tex., 47 FLRA 340 (1993)  22

American Fed'n of State, County, and Municipal Employees,
        AFL-CIO, Council 26 and U.S. Dep't of Justice,
       13 FLRA 578 (1984)  13, 19, 20

Fraternal Order of Police Lodge IF (R.I.) Fed. and Veterans Admin.,
       Veterans Admin. Med. Ctr., Providence, R.I., 32 FLRA 944
       (1988)  15

*  General Serv. Admin. and American Fed'n of Gov't Employees,
       Council of GSA Locals, Council 236, 54 FLRA 1582 (1998)  10, 14

National Ass'n of Gov't Employees, Local R14-52 and
       U.S. Dep't of Defense, Defense Finance and Accounting Serv.,
       Washington, D.C., 45 FLRA 910 (1992)  24

National Ass'n of Gov't Employees, Local R14-52 and
       U.S. Dep't of the Army, Red River Army Depot, Texarkana, Tex.,
       41 FLRA 1057 (1991), remanded for other reasons,
       U.S. Dep't of the Army, Red River Army Depot, Texarkana, Tex.,
       977 F.2d 1490 (D.C. Cir. 1992)  24

National Federation of Federal Employees, Local 1979 and U.S. Forest
  Service, San Dimas Equipment Development Center,
       16 FLRA 369 (1984)  11, 12, 14

*  National Treasury Employees Union and U.S. Customs Serv.,
       Region VIII, San Francisco, Cal., 2 FLRA 255 (1979)  14, 15, 21, 22



STATUTES

Federal Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997)  1
  5 U.S.C. § 7105(a)(2)(E)  1, 7
  5 U.S.C. § 7106(a)  4, 8
  5 U.S.C. § 7106(a)(2)(A), (B)  passim
* 5 U.S.C. § 7106(b)(1)  passim
  5 U.S.C. § 7117(c)  2, 7
  5 U.S.C. § 7123(a)  1, 2
* 5 U.S.C. § 7123(c)  6, 17
  5 U.S.C. § 706(2)(A)  6



CODE OF FEDERAL REGULATIONS

  5 C.F.R. § 2429.17  18



LEGISLATIVE HISTORY

*   S. Rep. No. 95-969 (1978), reprinted in 1978 U.S.C.C.A.N. 2830   11, 15



MISCELLANEOUS

The American Heritage College Dictionary (3d ed. 1997)  21, 22

Webster's Ninth New Collegiate Dictionary (1986)  10, 11

Webster's Third New International Dictionary (1976)  15

*Cases or authorities chiefly relied upon are marked by asterisks.



GLOSSARY

Agency      General Services Administration

Br.        Brief for the Petitioner

Customs Service    National Treasury Employees Union and U.S. Customs
Serv.,  Region VIII, San Francisco, Cal., 2 FLRA 255 (1979)

DOJ        American Federation of State, County, and Municipal
Employees, AFL-CIO, Council 26 and U.S. Dep't of Justice, 13 FLRA
578 (1984)

FLRA  or      Federal Labor Relations Authority
Authority

GSA        General Serv. Admin. and American Fed'n of Gov't
Employees, Council of GSA Locals, Council 236, 54 FLRA 1582 (1998)

JA        Joint Appendix

NASA      National Aeronautics and Space Admin., Washington,
D.C. and NASA, Office of the Inspector General v. FLRA, 119 S.Ct.
1979 (1999)

NTEU II      National Treasury Employees Union v. FLRA,
691 F.2d 553 (D.C. Cir. 1982)

Statute      Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997)

SSA, New Bedford    American Federation of Government Employees, Local
1164 and Social Security Administration, District Office, New
Bedford, Mass., 54 FLRA 1327 (1998)

Union      American Federation of Government Employees,
Council of GSA Locals, Council 236

U.S. Forest Service  National Federation of Federal Employees, Local 1979
and U.S. Forest Service, San Dimas Equipment Development
Center, 16 FLRA 369 (1984)




ORAL ARGUMENT SCHEDULED FOR FEBRUARY 28, 2000

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

No. 99-1244

_______________________________

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
COUNCIL OF GSA LOCALS, COUNCIL 236,
                           Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                           Respondent
_______________________________



ON PETITION FOR REVIEW OF A DECISION AND 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 ("FLRA" or "Authority") in 55 FLRA (No.
  73) 449 (April 30, 1999).  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. III 1997)
  (Statute).[1]  This Court has jurisdiction to review the Authority's final
  decisions and orders pursuant to section 7123(a) of the Statute.

STATEMENT OF THE ISSUE

  Whether the Authority properly determined that the summary performance
  rating levels for employees proposed by the union in this case are  not
  "methods" or "means" of performing work under section 7106(b)(1) of the
  Statute.

STATEMENT OF THE CASE

  This case arose as a negotiability proceeding under section 7117(c) of the
  Statute.  The American Federation of Government Employees, Council of GSA
  Locals, Council 236 (union), which represents employees at the General
  Services Administration (agency), submitted a bargaining proposal that
  prescribed the number of rating levels the agency would use when it gave
  employees summary performance appraisals, and that designated each of those
  levels.  The agency declared the proposal nonnegotiable.  The union appealed
  the agency's declaration of nonnegotiability to the Authority under section
  7117(c) of the Statute.
  The union did not dispute that the proposal affected management's rights to
  direct employees and assign work under section 7106(a)(2)(A) and (B) of the
  Statute.  Turning to whether the proposal was nevertheless electively
  negotiable, the Authority determined that the proposal could not be
  bargained because it did not concern "methods" or "means" of performing work
  within the meaning of section 7106(b)(1) of the Statute, and dismissed the
  union's negotiability appeal.  Pursuant to section 7123(a) of the Statute,
  the union seeks review of the Authority's decision.

STATEMENT OF THE FACTS

A.  Background
  After the agency completed a final draft of its performance appraisal
  system, it began bargaining with the union concerning that system.  The
  draft appraisal system was a two tier (pass/fail) system.   (Joint Appendix
  (JA) 26-28.)[2]In response, the union proposed four overall performance
  rating levels.  (JA 42.)  The union's proposal provided that:
The measures of rating for over-all performance shall be one (1) of the (4)
ratings defined below.  The rating shall be:
    - Unsatisfactory
    - Successful
    - Highly Successful
    - Outstanding
(JA 51).  The agency claimed the proposal was outside the duty to bargain
because it was inconsistent with management's rights to direct employees and
assign work under section 7106(a)(2)(A) and (B) of the Statute.  (JA 24-25.)
The union did not dispute the agency's claim and argued only that the proposal
was negotiable at the agency's election under section 7106(b)(1).  (JA 53-57.)
[3]
B.  The Authority's Decision
  The Authority first explained its analysis for resolving an agency's claims
  that a proposal affects a management right under section 7106(a), and a
  union's claims in response that the proposal is nevertheless permissively
  negotiable under section 7106(b)(1).  In this regard, even if a bargaining
  proposal interferes with the exercise of management rights set forth in
  section 7106(a), the agency may nevertheless elect to bargain on the
  proposal if the proposal concerns a matter listed in section 7106(b)(1),
  including, as pertinent here, the "methods" or "means" of performing the
  agency's work.
  Under the Authority's analysis, the Authority first resolves whether a
  proposal would ordinarily be excluded from the agency's duty to bargain
  because of the proposal's effect on the agency's section 7106(a) management
  rights.  If the proposal would fall outside the agency's duty to bargain for
  this reason, the Authority then determines whether the proposal is
  nevertheless negotiable at the agency's election, because the proposal falls
  within section 7106(b)(1).  (JA 85.)
  The union did not dispute that the proposal affected management's right to
  direct employees and assign work under section 7106(a)(2)(A) and (B) of the
  Statute.  Accordingly, reaching the aspect of its decision that is at issue
  in this proceeding, the Authority considered the union's claim that the
  proposal concerns matters that the agency may elect to negotiate under
  section 7106(b)(1), because the proposal concerns "methods" or "means" of
  performing work.  (JA 86-87.)  As the Authority discussed, a two prong test
  is applicable.   Under the first prong of the test, it must be established
  that the proposal concerns "methods" or "means" as defined by the Authority.
  In this connection, the Authority construes the term "methods" to refer to
  "how an agency performs its work."  (JA 86.)  The Authority construes the
  term "means" to refer to "what an agency uses to perform its work."  (JA
  87.)  Under the second prong of the test, it must be shown that:  (1) there
  is a direct and integral relationship between the particular methods or
  means the agency has chosen and the accomplishment of the agency's mission;
  and (2) the proposal would directly interfere with the mission-related
  purpose for which the method or means was adopted.[4]
  The Authority determined that the union's proposal did not concern either a
  method or means under section 7106(b)(1).  The Authority indicated at the
  outset that, apart from the bare assertion that the proposal constituted
  some sort of "measure," the union had not offered any explanation of how the
  proposal satisfied the Authority's definition of "methods" or "means."  The
  Authority also found no basis upon which to bring the proposal within its
  own definitions of those terms.  (JA 87.)  Rather, the Authority held, the
  proposal concerned how an agency evaluates employees' performance of their
  assigned work, and also concerned employees' work objectives.  In the
  Authority's view, this contrasted with the matters encompassed within the
  terms "methods" and "means."  As the Authority reiterated, for a proposal to
  concern "methods" or "means," it must concern "how employees will do their
  work," and "what they will use," to accomplish their assigned objectives.
  (JA 87.)  Accordingly, the Authority held that the proposal did not concern
  a method or means of performing work within the meaning of section 7106(b)
  (1) of the Statute, and dismissed the union's petition for review.

STANDARD OF REVIEW

  The standard of review of Authority decisions is "narrow."  American Fed'n
  of Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998).
  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, Inc. v.
  FLRA, 858 F.2d 769, 771-72 (D.C. Cir. 1988); EEOC v. FLRA, 744 F.2d 842, 847
  (D.C. Cir. 1984).  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).  A court should
  defer to the Authority's construction as long as it is reasonable.  See id.
  at 845.
  Considerable deference is warranted here since the Court is reviewing a
  determination that Congress delegated to the Authority as a primary function
  and responsibility.  See, e.g., National Aeronautics and Space Admin.,
  Washington, D.C. and NASA, Office of the Inspector General v. FLRA, 119 S.
  Ct. 1979, 1984 (1999) (NASA).  "Congress has specifically entrusted the
  Authority with the responsibility to define the proper subjects for
  collective bargaining, drawing upon its expertise and understanding of the
  special needs of public sector labor relations" in section 7105(a)(2)(E) of
  the Statute.  Library of Congress v. FLRA, 699 F.2d 1280, 1289 (D.C. Cir.
  1983) (footnote omitted).  The negotiability of the proposal at issue is
  determined by consideration of the appropriate scope of collective
  bargaining under sections 7105(a)(2)(E) and, in turn, 7117(c).  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) (citation omitted); see also NASA, 119 S. Ct. at 1984.  Courts
  "also owe deference to the FLRA's interpretation of [a] union's proposal."
  National Treasury Employees Union v. FLRA, 30 F.3d 1510, 1514 (D.C. Cir.
  1994), citing National Treasury Employees Union v. FLRA, 848 F.2d 1273, 1278
  (D.C. Cir. 1988).

SUMMARY OF ARGUMENT

  The Authority properly construed and applied the "methods" and "means"
  provisions of section 7106(b)(1) of the Statute, in deciding this case.  The
  Authority's basic definitions of "methods" and "means" are undisputed.
  "Methods" refers to "how" or "the way in which" an agency and its employees
  perform agency work and thus addresses matters involved in accomplishing
  assigned work.  "Means" refers to "what" an agency and its employees use to
  perform agency work.  As construed and applied by the Authority, the term
  "means" refers to "any instrumentality, including an agent, tool, device,
  measure, plan or policy used by an agency for the accomplishment or
  furtherance of the performance of its work."
  The performance rating level matters that are the subject of the union's
  proposal are conceptually distinct from "methods" and "means" of performing
  work under section 7106(b)(1).  As the Authority has held, determinations
  concerning rating levels concern how an agency will evaluate employee
  performance of assigned work, and the setting of work objectives.  To the
  extent that the union's rating level proposal concerns the evaluation of
  employee performance, it is conceptually distinct from "methods" and "means"
  of performing work because such evaluation matters only have significance
  and application after work has been performed when employees are being
  evaluated regarding their performance.  Insofar as the union's rating level
  proposal concerns the setting of work objectives, it is also conceptually
  distinct from "methods" and "means" under section 7106(b)(1).  Work
  objectives are neither the "ways" agencies determine to do their assigned
  work and attain those objectives, nor the instrumentalities employed by an
  agency and its employees when actually engaged in that process.
  The Court should reject the union's reasons for challenging the Authority's
  decision.  The union's first and third objections, that its rating level
  proposal must be covered by section 7106(b)(1) because it fell within the
  scope of certain management rights in section 7106(a), and that the proposal
  constituted an incentive, were never presented to the Authority and are
  therefore not within the Court's jurisdiction.  The union's second
  objection, that the proposal constitutes a measure and thus is a "means" of
  performing work, is unfounded.
  Further, none of the union's objections has merit.  As to its first
  objection, there is no necessary connection between the rights to direct
  employees and assign work under section 7106(a)(2)(A) and (B) of the Statute
  and the "methods" and "means" provisions of section 7106(b)(1).  As to the
  union's second objection, although the rating levels the union proposes may
  be a "measure" of how employees perform their work, it is not a "measure" as
  the Authority used the word in defining the term "means."  Finally, the
  union has not demonstrated how the mere establishment of rating levels are,
  by themselves, either incentives or disincentives to greater employee
  productivity.  Even if the rating levels proposed by the union were deemed
  to be incentives, under Authority and judicial precedent they would still
  not qualify as "methods" or "means" of performing work under section 7106(b)
  (1) of the Statute.

ARGUMENT

THE AUTHORITY PROPERLY DETERMINED THAT THE SUMMARY PERFORMANCE RATING LEVELS FOR
EMPLOYEES PROPOSED BY THE UNION IN THIS CASE ARE  NOT "METHODS" OR "MEANS" OF
PERFORMING WORK UNDER SECTION 7106(b)(1) OF THE STATUTE

  The Authority reasonably construed and applied section 7106(b)(1)'s
  "methods" and "means" provisions in this case.  As discussed by the
  Authority, the summary performance rating levels proposed by the union
  concern employees' work objectives and the agency's evaluation of employees'
  performance of that assigned work, not "how" or "with what" that work is to
  be accomplished.  Because the Statute's "methods" and "means" provisions
  refer to these latter two matters, i.e., "how" and "with what" work is to be
  accomplished, and because the Authority determined that the union's proposal
  did not concern either of them, the Authority accordingly concluded that the
  union's proposal did not concern "methods" or "means" of performing work.
  As discussed below, these Authority determinations are consistent with the
  Statute's language and legislative history, and with Authority precedent.
  The Authority's determinations should therefore be affirmed.
A.  The Authority Properly Construed and Applied, Consistent With its Decisional
Precedent, the "Methods" and "Means" Provisions of Section 7106(b)(1) in
Deciding This Case
  1.The Authority's construction of "methods" is consistent with the Statute's
  language and legislative history, and with Authority precedent
  The Authority's basic definitions of "methods" and "means" under section
  7106(b)(1) are undisputed.[5]  Turning first to "methods," the Authority in
  this case applied its general construction of the term, interpreting it to
  refer to "how" or "the way in which" an agency and its employees perform
  agency work.  JA 86; see, e.g., General Serv. Admin. and American Fed'n of
  Gov't Employees, Council of GSA Locals, Council 236, 54 FLRA 1582, 1589-90 &
  n.6 (1998) (GSA).
  This construction of "methods" accords both with dictionary definitions and
  with the Statute's own legislative history.  For example, "method" is
  defined as, among other things, "a way . . . of or for doing something."
  Webster's Ninth New Collegiate Dictionary (1986).  Similarly, the Statute's
  legislative history refers to management's right to determine "the methods
  (how) . . . by which agency operations will be conducted . . . ."   S. Rep.
  No. 95-969, at 768-69 (1978),  reprinted in 1978 U.S.C.C.A.N. 2830, 2831.
  The Authority's application of section 7106(b)(1)'s "methods" provision in
  its case law illustrates the provision's identification with the processes
  by which employees perform assigned work.  For example, in American
  Federation of Government Employees, Local 1164 and Social Security
  Administration, District Office, New Bedford, Mass., 54 FLRA 1327 (1998)
  (SSA, New Bedford), a case on which the Authority relied in the decision on
  review, the Authority considered a system for assigning SSA claims
  representatives in rotation among various entitlement programs administered
  in the SSA district office.  Id. at 1350-51.  The rotational assignment
  system's primary impact was to distribute employees' time differently, to
  increase the time claims representatives were available for client
  interviews.  Id. at 1328-29.  Focusing on this aspect of the system, the
  Authority found that it "was designed to change the method of performing
  [the agency's] work," and thus fell within the scope of the "methods"
  provision of section 7106(b)(1).  Id. at 1351-52.
  Process considerations were also key when the Authority decided National
  Federation of Federal Employees, Local 1979 and U.S. Forest Service, San
  Dimas Equipment Development Center, 16 FLRA 369 (1984) (U.S. Forest
  Service).  As pertinent here, the case dealt with a system for reporting to
  agency management on the results of research and testing projects.  Id. at
  373.  The proposal at issue would have required the agency to accept
  technical dissents as part of the reports submitted by employees.  Id. at
  372.  Directing its attention to the process at issue, the Authority held
  that the proposal concerned the "methods" by which the agency performed its
  work because it represented "one of a number of ways in which the Agency
  could take into account differing opinions in compiling its technical
  reports."  Id. at 373.
  In sum, by addressing "how" or "the way in which" an agency and its
  employees perform work, the "methods" provision of section 7106(b)(1)
  focuses on the work process.  As discussed below, the Authority correctly
  applied this construction of the Statute when it resolved this case.
  2.The Authority properly applied the "methods" provision of the Statute
  in this case
  The Authority correctly determined that the union's rating level proposal in
  this case does not concern a "method" of performing work.   The Authority
  reached this conclusion on the basis of two findings, both of which are
  clearly correct; first, that the union's proposal concerns how the agency
  evaluates employees' performance of their assigned work; second, that the
  proposal concerns employees' work objectives.  Because these two matters are
  conceptually distinct from the matters with which the "methods" provision of
  section 7106(b)(1) is concerned, the proposal  does not fall within the
  coverage of that provision of the Statute.
  Regarding the Authority's first basis, the proposal's wording makes evident
  that the proposal concerns how the agency evaluates employees' performance
  of their assigned work.  As the Authority held, "[t]he proposal, on its
  face, prescribes the number of rating levels that will be used to evaluate
  employees' overall performance and designates those levels."  (JA 85.)
  Rating levels are conceptually distinct from"methods" of performing work
  under section 7106(b)(1).  As discussed in the preceding section, the
  Statute's  "methods" provision concerns "how" or "the way in which" the
  agency and its employees perform agency work and thus addresses matters
  involved in the accomplishment of assigned work.  In contrast, the rating
  levels proposed by the union in this case, to the extent they concern
  evaluation matters, only have significance and application after work has
  been performed when employees are being evaluated regarding their
  performance.  "Methods" of performing work, and the rating levels applied to
  evaluate the work performed using those "methods,"  therefore relate to
  distinctly different aspects of agency operations.
  The Authority's second reason also identifies a reasonable distinction
  between rating levels and "methods" of performing work.  It is well
  established in the Authority's case law that determinations regarding rating
  levels concern employees' work objectives.  E.g., American Fed'n of State,
  County, and Municipal Employees,  AFL-CIO, Council 26 and U.S. Dep't of
  Justice, 13 FLRA 578, 580-81 (1984).  Determining work objectives, including
  such things as the quantity, quality, and timeliness of work expected, can
  reasonably be distinguished from determining "how" to accomplish those
  objectives.  For example, in the SSA, New Bedford case cited previously, the
  agency's determination to provide same-day service to its clientele whenever
  possible was distinct from its determination to use an expanded rotational
  assignment system as a method of achieving that objective.  Similarly, in
  U.S. Forest Service, the union's proposal to include technical dissents with
  reports was one of a number of possible methods the agency could have used
  to "take into account differing opinions in compiling its technical
  reports."  U.S. Forest Service, 16 FLRA at 373.  Thus, although
  determinations concerning work objectives and determinations of the
  appropriate "methods" for reaching those objectives are not unrelated
  functions, they also are not the same, and may reasonably be distinguished.
  This consideration reinforces the correctness of the Authority's
  determination that the union's proposal does not concern "how" or the "way
  in which" employees go about the accomplishment of their assigned work.  The
  Authority's conclusion to this effect should be upheld.
  3.The Authority's construction of "means" is consistent with the Statute's
  language and legislative history, and with Authority precedent
  Turning to "means" under section 7106(b)(1), the Authority in this case
  applied its general construction of the term, interpreting it to refer to
  "what" an agency and its employees use to perform agency work.  JA 87; see,
  e.g., GSA, 54 FLRA at 1590 n.6.  This understanding of "means" has its roots
  in early Authority precedent, where the Authority held that "in the context
  of section 7106(b)(1), ["means"] refers to any instrumentality, including an
  agent, tool, device, measure, plan, or policy used by the agency for the
  accomplishing or the furthering of the performance of its work."  National
  Treasury Employees Union and U.S. Customs Serv., Region VIII, San Francisco,
  Cal., 2 FLRA 255, 258 (1979) (Customs Service).
  This construction of "means," based on its ordinary dictionary
  definition,[6] also comports with the Statute's legislative history.  That
  legislative history, cited previously with regard to the definition of
  "methods," also addresses the term "means," clarifying that "means" of
  performing work was intended to refer to "with what" an agency conducts its
  operations.  S. Rep. No. 95-969, at 768-69 (1978),  reprinted in 1978
  U.S.C.C.A.N. 2830, 2831.
  The Authority's consistent application of the term "means" in its case law
  has identified a variety of instrumentalities that agencies and their
  employees have used to accomplish agency work.  Qualifying as "means" of
  performing work have been such "instrumentalities" as nameplates for Customs
  Service officers;[7]badges and firearms, handcuffs, and leather gear for
  Immigration and Naturalization Service officers;[8] and vehicles for an
  agency's security personnel.[9]  Thus, as construed and applied by the
  Authority, the "means" provision of section 7106(b)(1) pertains to specific
  instrumentalities that contribute directly to accomplishing or furthering
  the performance of the agency's work.  As discussed below, the Authority
  correctly applied this construction of "means" in the instant case.
  4.The Authority correctly applied the "means" provision of the Statute in this
  case
  Comparable to its conclusion regarding the "methods" provision of section
  7106(b)(1), the Authority correctly determined that the union's rating level
  proposal does not concern a "means" of performing work.  The analysis is
  similar.  As discussed previously, the union's proposal relates primarily to
  evaluating employees' performance of their assigned work and setting
  employees' work objectives.  These activities, to which the proposal
  pertains, are conceptually distinct from "means" of performing work.  These
  performance appraisal-related and goal-setting functions are not themselves
  the instrumentalities which the agency and its employees use during the time
  they are endeavoring to accomplish the work that the rating levels proposed
  by the union will later be applied to evaluate.  Therefore, they are not
  within the scope of the "means" provision of section 7106(b)(1) of the
  Statute.
  B.  The Union's Arguments for Overturning the Authority's Decision Are Without
  Merit
  The union challenges the Authority's decision on three bases, none of which
  have merit.  First, the union contends (Br. 22-34) that because its rating
  level proposal affects the agency's management rights to direct employees
  and assign work under section 7106(a)(2)(A) and (B) of the Statute, the
  proposal must also concern a "method" or a "means" of performing work under
  section  7106(b)(1).  Second, the union argues (Br. 34-39) that the
  Authority in this case has departed from its  precedent holding that "means"
  of performing work include "measures," because the Authority held that the
  union's proposal, which is assertedly a "measure," is not a "means" of
  performing work.  Third, the union claims (Br. 39-43) that its rating level
  proposal provides an incentive for greater productivity, and therefore
  constitutes a "method" or "means" of performing work under section 7106(b)
  (1) of the Statute.  For the reasons discussed below, the union's
  contentions are not well-founded and should be rejected.
  1. There is no necessary connection between the rights to direct employees and
  assign work under section 7106(a)(2)(A) and (B) and the "methods" and "means"
  provisions of section 7106(b)(1)
  a.The Court does not have jurisdiction to consider the  union's argument
  Pursuant to section 7123(c) of the Statute, the Court lacks jurisdiction to
  consider the union's argument because it was not urged in proceedings before
  the Authority.  It is well-established that a party may not raise before the
  Court an argument not presented to the Authority.  Pursuant to 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] . . . ."  The Supreme Court
  has applied the plain words of this section and held that "under section
  7123(c), review of 'issues that [a party] never placed before the Authority'
  is barred absent extraordinary circumstances."  EEOC v. FLRA, 476 U.S. 19,
  23 (1986) (citation omitted).  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, Inc. v. FLRA, 827 F.2d
  814,  820 (D.C. Cir. 1987).  The requirements of section7123(c) apply even
  as to issues that the Authority raises sua sponte.   See U. S. Dep't of
  Commerce, Nat'l Oceanic & Atmospheric Admin., Nat'l Weather Serv., Silver
  Spring, Md. v. FLRA, 7 F.3d 243, 245-46 (D.C. Cir. 1993) (noting that the
  party should have filed a motion for reconsideration concerning an issue
  raised by the Authority sua sponte).
  The union's argument (Br. 22-34) concerning the relationship between the
  rights to direct employees and assign work on the one hand, and "methods"
  and "means" on the other, was never presented to the Authority in this case
  and, accordingly, this Court lacks jurisdiction to consider it.  Indeed, the
  only argument offered by the union in this case was that its proposal
  constituted a "measure."  (JA 56-57.)  In addition, the union failed to move
  the Authority to reconsider the case in light of this argument.  5 C.F.R. §
  2429.17.  Furthermore, there is no indication that a request by the union
  for reconsideration would necessarily have been futile.  See Georgia State
  Chapter Assoc. of Civilian Technicians v. FLRA, 184 F.3d 889, 892 (D.C. Cir.
  1999).  Therefore, because the union did not make this argument to the
  Authority in this case, and because there do not appear to be any
  extraordinary circumstances that would excuse the union's failure, the union
  may not present its argument here.
  b. The fact that the union's rating level proposal affects management's rights to
  direct employees and assign work does not imply that the proposal also
  constitutes a "method" or a "means" of performing work
  Even if this Court were to find that it had jurisdiction to consider the
  union's argument concerning the relationship between the rights to direct
  employees and assign work, and "methods" and "means," the Court should
  reject the argument because it has no merit.  In essence, the union argues
  that because the Authority has held that rating levels, in conjunction with
  performance standards, are used by agencies to accomplish agency work, it
  must follow that rating levels concern "how" an agency performs its work.
  The union is wrong.  The fact that an agency's management rights contribute
  in one way or another to the accomplishment of the agency's work does not
  imply that the exercise of those rights necessarily implicates a "method" or
  "means" of performing work.
  The case law cited by the union in support of its argument is
  distinguishable, and provides no support for the proposition that rating
  level proposals constitute "methods" or "means" of performing work under
  section 7106(b)(1).  In particular,  American Federation of State, County,
  and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice,
  13 FLRA 578 (1984) (DOJ), upon which the union relies heavily, does not
  address "methods" and "means" issues at all.  The Authority's discussion in
  DOJ is limited to an explanation of why rating level proposals affect
  management's rights to direct employees and assign work.  Nothing in that
  discussion controverts the Authority's rationale in this case,  discussed
  previously in section A., that rating level proposals deal with performance
  appraisal-related and goal-setting functions that are conceptually distinct
  from the practical, work-related decisions an agency makes in determining
  which "methods" and "means" to employ to accomplish assigned work.  Thus,
  although the matters with which rating level proposals deal also relate to
  the agency's accomplishment of its work, they do not necessarily involve
  actions that employees take while actually engaged in the performance of the
  work assigned to them.
  That there is no necessary inconsistency in a matter affecting the rights to
  direct employees and assign work, but not the "methods" or "means," is
  confirmed by an examination of the NTEU II[10]decision cited by the union
  (e.g., Br. 23).  In NTEU II, the D.C. Circuit upheld the Authority's
  determination that performance standards for employees are within the
  coverage of management's rights to direct employees and assign work.  The
  Court agreed with the Authority that such performance standards, which the
  Authority held to be integrally related to rating levels in its later DOJ
  decision,
  are more than mere ex post facto measures of employee performance; they mark out
  beforehand the amount, quantity and timeliness of the work employees are to
  perform.
NTEU II, 691 F.2d at 562.
  This passage from the Court's NTEU II decision makes precisely the same
  point that the Authority adverted to in its decision at issue here, when it
  explained why the union's rating level proposal did not concern "methods" or
  "means."  As explained by the Court, performance standards (and, by
  extension in DOJ, rating levels) have an impact on employees' performance of
  work in two ways:  First, by "mark[ing] out beforehand the amount, quality
  and timeliness of the work employees are to perform," they communicate work
  objectives; second, they are "ex post facto measures of employee
  performance," i.e., they relate to performance appraisal matters.  As
  discussed previously, because neither of these two areas is directly
  concerned with the actions employees take in actually performing their
  assigned duties, the rating level determinations that underlie them are
  conceptually distinct from "methods" or "means" of performing work.
  Accordingly, jurisdictional considerations aside, the Court should reject
  the union's argument that the effect of rating level proposals on
  management's rights to direct employees and assign work necessarily implies
  that rating level proposals also concern "methods" and "means" of performing
  work.
  2. The Authority's decision in this case is consistent with its definition of
  "means" under section 7106(b)(1)
  The union's claim (Br. 34-39) that its proposal constitutes a "measure,"
  and should therefore have been held to be a "means" of performing work, is
  based on a simple linguistic error.  In this regard, the union points out,
  accurately, that the Authority has included the word "measure" in its
  definition of "means" of performing work under section 7106(b)(1).  E.g.,
  Customs Service, 2 FLRA at 258.  However, the union fails to recognize that
  "measure" itself has a variety of definitions, and that the definition
  adopted by the Authority is not the same as that relied upon by the union
  in this case.
  The union appears to be using the word "measure" in a evaluative sense.  In
  this connection, the union claims (Br. 18-19) that its rating level proposal
  "constitutes a 'measure' of job performance by an employee."  This use
  accords with dictionary definitions of "measure" as, for example, "a device
  used for measuring" or "an evaluation or a basis of comparison."  The
  American Heritage College Dictionary, Third Edition (1997).
  The Authority used the word "measure" in a different sense when it defined
  the statutory term "means."  Repeating that definition, quoted previously,
  to provide context, the Authority defined "means" as "any instrumentality,
  including an agent, tool, device, measure, plan, or policy used by the
  agency for the accomplishing or the furthering of the performance of its
  work."  Customs Service, 2 FLRA at 258 (emphasis added).  This use of
  "measure" accords with dictionary definitions of the word as, for example,
  "an action taken as a means to an end; an expedient."  The American Heritage
  College Dictionary, Third Edition, supra.  The Authority has previously used
  the term in this sense.  See, e.g., American Fed'n of Gov't Employees, Local
  1920 and U.S. Dep't of Defense, Army and Air Force Exchange Serv., Fort Hood
  Exchange, Fort Hood, Tex., 47 FLRA 340, 343 (1993) (holding that the amount
  of space and the arrangement of that space for displaying goods and services
  at a post exchange "are among the measures used by the Agency to facilitate
  its sales mission," and that "therefore, . . . the design and layout of the
  store constitutes a 'means' within the meaning of section 7106(b)(1) of the
  Statute.")
  This definition of "measure" is plainly different from the evaluative
  definition relied upon by the union.  Because the union's proposal is not a
  "measure" in the sense in which the Authority used the term, there is
  nothing inconsistent in the Authority's conclusion that the kind of
  "measure" proposed by the union in this case is not a "means" of performing
  work under section 7106(b)(1).  Therefore, the union's contention that the
  Authority has neglected its precedent and ruled inconsistently should be
  rejected.
  3. The union's assertion that its rating level proposal provides employees with
  an incentive for greater productivity does not establish that the proposal is a
  "method" or "means" of performing work under section 7106(b)(1)
  a. The Court does not have jurisdiction to consider the  union's argument
  As discussed in section B.1.a., above, the Court lacks jurisdiction to
  consider the union's incentive argument because it was not urged in
  proceedings before the Authority.
  b. The union's incentive argument lacks merit
  Even if this Court were to find that it had jurisdiction to consider the
  union's incentive argument, the Court should reject it.  The union
  erroneously claims that its rating level proposal is a "method" or "means"
  of performing work because, the union contends, implementation of the
  proposal may provide employees with an incentive for greater productivity.
  The union's argument is flawed for two reasons.  First, the union has not
  demonstrated that mere establishment of rating levels provides employees
  with any type of incentive for greater productivity.  Second, even if the
  union's rating level proposal provided employees with an incentive, it still
  would not qualify as a "method" or "means" under section 7106(b)(1) of the
  Statute.
  As to the first point, analytically, it cannot be said as a general matter
  that the mere establishment of rating levels provides employees with any
  type of incentive.  Rating levels are neither inherently beneficial nor
  detrimental to employees.  As discussed previously, rating levels are part
  of the system for communicating to employees the quantity, quality, and
  timeliness of work that is required, as well as providing categories for
  classifying employee performance when that performance is appraised.
  Incentives, on the other hand, relate to the particular rewards (or
  penalties) for particular levels of performance.  Cf., e.g., National Ass'n
  of Gov't Employees, Local R14-52 and U.S. Dep't of Defense, Defense Finance
  and Accounting Serv., Washington, D.C., 45 FLRA 910, 914 (1992)
  (distinguishing performance award proposals from proposals that would
  establish productivity requirements).  The instant case involves only rating
  levels.     Even if one were to view the union's rating level proposal as
  providing an incentive for greater employee productivity, it would still not
  qualify as a "method" or "means" under section 7106(b)(1).  As the Authority
  and the courts have held, "to include everything that contributes generally
  to employee motivation"[11] within the ambit of matters that are negotiable
  only at the agency's election under section 7106(b)(1), would "stretch[] the
  plain meaning of [that section's] words to the breaking point."  Federal
  Employees Metal Trades Council v. FLRA, 778 F.2d 1429, 1431 (9th Cir. 1985).
  Such a ruling would sweep within section 7106(b)(1)'s coverage "any benefit
  to employees [used as] a means of retaining a stable and committed
  workforce," including, arguably, "all wages, hours, and working conditions."
  Id.  Accordingly, if the Court reaches the issue, it should reject the
  union's over broad argument that its proposal constitutes an incentive
  relating to employee productivity, and as such, is a "method" or "means" of
  performing work under the Statute.

CONCLUSION

  The union's petition for review should be denied.


  Respectfully submitted.


DAVID M. SMITH
Solicitor


WILLIAM R. TOBEY
Deputy Solicitor


PAMELA P. JOHNSON
Attorney


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

DECEMBER 16, 1999




CERTIFICATION PURSUANT TO FRAP RULE 32
AND D.C. CIRCUIT RULE 28(d) FORM OF BRIEF

Pursuant to Federal Rule of Appellate Procedure 32 and D.C. Circuit Rule
28(d), I certify that the attached brief is written in a proportionally-
spaced 14-point font and contains 6247 words.

December 16, 1999



___________________________
          Pamela P. Johnson




SERVICE LIST

I certify that copies of the Brief For The Federal Labor Relations
Authority have been served this day, by mail, upon the following:

Kevin M. Grile                              Mark D. Roth
Assistant General Counsel                   General Counsel
  AFGE, AFL-CIO                             Charles A. Hobbie
449 North Clark St., Room 300               Deputy General Counsel
Chicago, IL 60610                             AFGE, AFL-CIO
                                            80 F Street, NW
                                            Washington, DC  20001


Jennifer A. Baker
Paralegal Specialist

     December 16, 1999




STATUTORY AND REGULATORY ADDENDUM


TABLE OF CONTENTS

1.  5 U.S.C. § 7105(a)(2)(E)   A-1
2.  5 U.S.C. § 7106(a)(2)(A), (B); (b)(1)   A-2
3.  5 U.S.C. § 7117(c)   A-3
5.  5 U.S.C. § 7123(a), (c)  A-5
6.  5 U.S.C. § 706(2)(A)  A-7
7.  5 C.F.R. § 2429.17   A-8

§ 7105. Powers and duties of the Authority

(a)

* * * * * * * * * * * * * * * *

    (2) The Authority shall, to the extent in this chapter and in
     accordance with regulations prescribed by the Authority -

* * * * * * * * * * * * * * * *

    (E) resolves issues relating to the duty to bargain in good faith under
    section 7117(c) of this title;

* * * * * * * * * * * * * * * *

      § 7106. Management rights
  (a) Subject to subsection (b) of this section, nothing in this chapter shall
  affect the authority of any management official of any agency -

* * * * * * * * * * * * * * *

    (2) in accordance with applicable laws -

* * * * * * * * * * * * * * *

      (A) to hire, assign, direct, layoff, and retain employees in the
      agency, or     to suspend, remove, reduce in grade or pay, or take
      other disciplinary     action against such employees;
      (B) to assign work, to make determinations with respect to
      contracting out, and to determine the personnel by which agency
      operations shall be conducted;

* * * * * * * * * * * * * * *

  (b) Nothing in this section shall preclude any agency and any labor
  organization from negotiating -
    (1) at the election of the agency, on the numbers, types, and   grades
    of employees or positions assigned to any organizational   subdivision,
    work project, or tour of duty, or on the technology,   methods, and
    means of performing work;

* * * * * * * * * * * * * * *

§ 7117. Duty to bargain in good faith; compelling need; duty to consult

* * * * * * * * * * * * * * *

      (c)(1) Except in any case to which subsection (b) of this section applies,
      if an   agency involved in collective bargaining with an exclusive
      representative   alleges that the duty to bargain in good faith does not
      extend to any matter, the   exclusive representative may appeal the
      allegation to the Authority in   accordance with the provisions of this
      subsection.
  (2) The exclusive representative may, on or before the 15th day after the
  date on which the agency first makes the allegation referred to in paragraph
  (1) of this subsection, institute an appeal under this subsection by -
  (A) filing a petition with the Authority; and
  (B) furnishing a copy of the petition to the head of the agency.
  (3) On or before the 30th day after the date of the receipt by the head of
  the agency of the copy of the petition under paragraph (2)(B) of this
  subsection, the agency shall -
  (A) file with the Authority a statement -
  (i) withdrawing the allegation; or
    (ii) setting forth in full its reasons supporting the   allegation; and
  (B) furnish a copy of such statement to the exclusive representative.
  (4) On or before the 15th day after the date of the receipt by the exclusive
  representative of a copy of a statement under paragraph (3)(B) of this
  subsection, the exclusive representative shall file with the Authority its
  response to the statement.
  (5) A hearing may be held, in the discretion of the Authority, before a
  determination is made under this subsection. If a hearing is held, it shall
  not include the General Counsel as a party.
  (6) The Authority shall expedite proceedings under this subsection to the
  extent practicable and shall issue to the exclusive representative and to
  the agency a written decision on the allegation and specific reasons
  therefore at the earliest practicable date.
§ 7123. Judicial review; enforcement
  (a) Any person aggrieved by any final order of the Authority other than an
  order under -
(1) section 7122 of this title (involving an award by an arbitrator), unless the
order involves an unfair labor practice under section 7118 of this title, or
(2) section 7112 of this title (involving an appropriate unit determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in the
United States court of appeals in the circuit in which the person resides or
transacts  business or in the United States Court of Appeals for the District of
Columbia.

* * * * * * * * * * * * * * *

  (c) Upon the filing of a petition under subsection (a) of this section for
  judicial review or under subsection (b) of this section for enforcement, the
  Authority shall file in the court the record in the proceedings, as provided
  in section 2112 of title 28. Upon the filing of the petition, the court
  shall cause notice thereof to be served to the parties involved, and
  thereupon shall have jurisdiction of the proceeding and of the question
  determined therein and may grant any temporary relief (including a temporary
  restraining order) it considers just and proper, and may make and enter a
  decree affirming and enforcing, modifying and enforcing as so modified, or
  setting aside in whole or in part the order of the Authority. The filing of
  a petition under subsection (a) or (b) of this section shall not operate as
  a stay of the Authority's order unless the court specifically orders the
  stay. Review of the Authority's order shall be on the record in accordance
  with section 706 of this title. No objection that has not been urged before
  the Authority, or its designee, shall be considered by the court, unless the
  failure or neglect to urge the objection is excused because of extraordinary
  circumstances. The findings of the Authority with respect to questions of
  fact, if supported by substantial evidence on the record considered as a
  whole, shall be conclusive. If any person applies to the court for leave to
  adduce additional evidence and shows to the satisfaction of the court that
  the additional evidence is material and that there were reasonable grounds
  for the failure to adduce the evidence in the hearing before the Authority,
  or its designee, the court may order the additional evidence to be taken
  before the Authority, or its designee, and to be made a part of the record.
  The Authority may modify its findings as to the facts, or make new findings
  by reason of additional evidence so taken and filed. The Authority shall
  file its modified or new findings, which, with respect to questions of fact,
  if supported by substantial evidence on the record considered as a whole,
  shall be conclusive. The Authority shall file its recommendations, if any,
  for the modification or setting aside of its original order. Upon the filing
  of the record with the court, the jurisdiction of the court shall be
  exclusive and its judgment and decree shall be final, except that the
  judgment and decree shall be subject to review by the Supreme Court of the
  United States upon writ of certiorari or certification as provided in
  section 1254 of title 28.
§ 706. Scope of review
To the extent necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms of
an agency action. The reviewing court shall -

* * * * * * * * * * * * * * *

  (2) hold unlawful and set aside agency action, findings, and conclusions
  found to be -
    (A) arbitrary, capricious, an abuse of discretion, or otherwise not in
    accordance with law;

Code of Federal Regulations
Title 5, Volume 3, Parts 1200 to end
Revised as of January 1, 1998
From the U.S. Government Printing Office via GPO Access
CITE: 5CFR2429.17

Page 403-404

TITLE 5--ADMINISTRATIVE PERSONNEL

CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL

PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS--Table of Contents

Subpart A--Miscellaneous

Sec. 2429.17  Reconsideration.

    After a final decision or order of the Authority has been issued, a party to
    the proceeding before the Authority who can establish in its moving papers
    extraordinary circumstances for so doing, may move for reconsideration of
    such final decision or order. The motion shall be filed within ten (10) days
    after service of the Authority's decision or order. A motion for
    reconsideration shall state with particularity the extraordinary
    circumstances claimed and shall be supported by appropriate citations. The
    filing and pendency of a motion under this provision shall not operate to
    stay the effectiveness of the action of the Authority, unless so ordered by
    the Authority. A motion for reconsideration need not be filed in order to
    exhaust administrative remedies.
[46 FR 40675, Aug. 11, 1981]




[1]    Pertinent statutory and regulatory provisions are set forth in Addendum A
to this brief.
[2]      "JA" references are to the Joint Appendix submitted by the union with
its opening brief.
[3]    The Authority's earlier dismissal of the union's negotiability appeal for
procedural reasons, and subsequent rescission of that dismissal (JA 76-78), are
not relevant to the issues before the Court in this case, and will not be
discussed further in this brief.
[4]    Neither element of the second prong of the Authority's test is at issue
in this proceeding; the second prong will not be discussed further herein.
[5]    The only issue raised by the union relating to the Authority's
definitions is whether the Authority consistently applied its definition of
"means" in this case.  The union claims in this regard that its proposal is a
"means" because it is a "measure" of how employees perform their work.  See
discussion, infra, in section B.2.
[6]      See Webster's Third New International Dictionary (1976), cited by the
Authority in Customs Service, 2 FLRA at 258 n.8.
[7]      Customs Service, 2 FLRA at 257-59.
[8]    American Fed'n of Gov't Employees, Local 1917 and U.S. Dep't of Justice,
Immigration and