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 that is "creating the appearance" that the Standards of Ethical
Conduct are being violated. Agency Br., Addendum p.25a. The fact that the FAA
has failed to follow procedures in a program established for ATCS does not
render the proposal at issue inconsistent with the Government-wide regulation.
[11] Moreover, neither the Union nor the Agency has asserted that the
Authority failed to properly interpret the meaning of the proposal.
