Office of the Circuit Executive
U.S. Court of Appeals for the Ninth Circuit |
Case Name: AMERICAN FEDERATION V FLRA |
|
Case Number: | Date Filed: |
98-70912 | 03/03/00 |
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE
NINTH CIRCUIT
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
(AFGE), Council 147,
Petitioner,
No.
98-70912
SOCIAL SECURITY ADMINISTRATION,
FLRA No.
Respondent-Intervenor,
54-FLRA-45
v.
OPINION
FEDERAL LABOR RELATIONS
AUTHORITY,
Respondent.
On Petition for
Review of a Decision of the
Federal Labor Relations Authority
Argued
and Submitted
December 8, 1999--San Francisco, California
Filed March
3, 2000
Before: Charles Wiggins, Diarmuid F. O'Scannlain, and
Michael
Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins
_________________________________________________________________
COUNSEL
Kevin M. Grile (argued), American Federation of
Govern-
ment Employees, AFL-CIO, Chicago, Illinois, for the peti-
tioner.
2410
David M. Smith
(argued) and Ann M. Boehm, Federal Labor
Relations Authority, Washington,
D.C., for the respondent.
Alfred R. Mollin (argued), United States
Department of Jus-
tice, Washington, D.C., for the intervenor.
_________________________________________________________________
OPINION
HAWKINS, Circuit Judge:
We must decide whether a district
office of the Social
Security Administration (the "Agency") committed an
unfair
labor practice when it refused to bargain over staffing levels
pursuant to section 7106(b)(1) of the Federal Service Labor-
Management
Relations Statute (the "Statute"). Although sec-
tion 7106(b)(1) only
provides for bargaining "at the election
of the agency," the American
Federation of Government
Employees, AFL-CIO, Council 147 (the "Union")
contends
that the President made this election for the Agency through
Executive Order 12871, which directs all agencies to bargain
over section
7106(b)(1) topics. After the Federal Labor Rela-
tions Authority ("FLRA")
rejected this argument, the Union
petitioned this court for review. We now
affirm the FLRA's
decision and deny the petition for review.
Facts and
Procedural Background
The Union is the designated labor representative
for
Agency employees in the San Francisco region, including
employees
working in the Santa Rosa district office. In Octo-
ber 1994, Union member
Steve Matich, a claims representa-
tive, asked to move from one unit to
another within the
district office. Matich apparently expected that, if
moved, he
would trade places with a claims representative in the other
unit. However, when the Agency's district manager told
Union officials she
was considering the transfer, she stated
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that Matich's transfer, if granted, would not be
accompanied
by any other moves.
Because the Union was concerned that a
unilateral transfer
would unbalance workloads in the two units, it
requested that
no changes be made until the Union and Agency "have bar-
gained to agreement." In making this request, the Union cited
section
7106(b)(1) of the Statute, which provides for bargain-
ing "at the election
of the agency, on the numbers, types, and
grades of employees or positions
assigned to any organiza-
tional subdivision, work project, or tour of
duty, or on the
technology, methods, and means of performing work. " 5
U.S.C. S 7106(b)(1). Although section 7106(b)(1) does not
give unions a
right to bargain unless an agency elects to, the
Union maintained that the
President had made this election on
behalf of the Agency through Executive
Order 12871 (the
"Order").
The President issued the Order on October 1,
1993. Its pur-
pose, as stated in the opening paragraph, is to involve
"Federal Government employees and their union
representatives" in
"achieving the National Performance
Review's Government reform objectives."
58 Fed. Reg.
52201, 52201 (1993). Among the provisions of the Order is
section 2(d), which falls under a heading titled
"Implementation of
Labor-Management Partnerships
Throughout the Executive Branch." Section
2(d) states that
"[t]he head of each agency subject to the provisions of
Chap-
ter 71 of title 5, United States Code shall . . . . negotiate
over
the subjects set forth in 5 U.S.C. S 7106(b)(1), and instruct
subordinate officials to do the same." Id. at 52202-03.
Section 3 of
the Order is titled "No Administrative or Judi-
cial Review." It provides
as follows:
This order is intended only to improve the
internal
management of the executive branch and is
not
intended to, and does not, create any right to
admin-
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istrative or judicial review, or any other right, sub-
stantive or procedural, enforceable by a party against
the United States, its agencies or instrumentalities,
its officers or employees, or any other person.
Id. at 52203.
After receiving the Union's request to bargain, the Agency
moved Matich to
another unit without replacing him. The
Agency informed Union officials
that it would negotiate over
the implementation and impact of the transfer,
as required by
5 U.S.C. SS 7016(b)(2) and 7106(b)(3),1 but would not
bar-
gain over staffing levels. The Union then filed an unfair labor
practice charge pursuant to 5 U.S.C. SS 7116(a)(1) and
7116(a)(5),2
alleging that the Agency committed an unfair
labor practice by unilaterally
changing staffing levels without
giving the Union an opportunity to
bargain. Both the ALJ and
the FLRA rejected this argument, finding that no
unfair labor
practice had occurred because the Order did not constitute
an
election for purposes of section 7106(b).3
_________________________________________________________________
1 Section
7106(b)(2) provides for bargaining over the "procedures which
management
officials of the agency will observe in exercising any author-
ity under
this section." 5 U.S.C. S 7106(b)(2). Section 7106(b)(3) provides
for
bargaining over "appropriate arrangements for employees adversely
affected
by the exercise of any authority under this section by such man-
agement
officials." 5 U.S.C. S 7106(b)(3). Unlike section 7106(b)(1),
these two
sections do not give agencies discretion to bargain, but instead
mandate
bargaining.
2 Section 7116(a)(1) makes it an unfair labor practice "to
interfere with,
restrain, or coerce any employee in the exercise by the
employee of any
right under this chapter." 5 U.S.C. S 7116(a)(1). Section
7116(a)(5) makes
it an unfair labor practice "to refuse to consult or
negotiate in good faith
with a labor organization as required by this
chapter." 5 U.S.C.
S 7116(a)5).
3 The FLRA decided this interpretative
issue in a related case. See
United States Dep't of Commerce, Patent and
Trademark Office
("Commerce II"), 54 FLRA No. 43 (1998). It then applied
the reasoning
of that case to the facts of the present case. See Social
Security Admin.,
Santa Rosa Dist. Office, Santa Rosa, California, 54 FLRA
No. 45 (1998).
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Standard
of Review
We give deference to an agency's interpretation of statutes
and executive orders it is charged with administering. See
NLRB v. Kolkka,
170 F.3d 937, 939 (9th Cir. 1999) (statute);
Kester v. Campbell, 652 F.2d
13, 15 (9th Cir. 1981) (execu-
tive order); University of S. Cal. v. Cost
of Living Council,
472 F.2d 1065, 1068 (9th Cir. 1972) (executive order).
When
an agency interprets a statute outside its administration, how-
ever, we review that interpretation de novo.4 See J.L. v. Social
Sec.
Admin., 971 F.2d 260, 268 (9th Cir. 1992) (no deference
to SSA construction
of Rehabilitation Act); see also FLRA v.
U.S. Dep't of Treasury, Fin. Mgmt.
Serv., 884 F.2d 1446,
1451 (D.C. Cir. 1989) (no deference to FLRA's
interpretation
of Privacy Act).
In this case, the FLRA interpreted an
executive order deal-
ing with labor-management partnerships in the federal
gov-
ernment. Although the Order relates to matters under the
FLRA's
responsibility, the FLRA was not charged with
administering the Order such
that its interpretation is entitled
to deference. Therefore, we review the
FLRA's interpretation
of the Order de novo.
Analysis
We start with
the language of the Order. Section 2(d) of
Executive Order 12871 states
that "[t]he head of each agency
subject to the provisions of Chapter 71 of
title 5, United States
Code shall . . . . negotiate over the subjects set
forth in 5
_________________________________________________________________
4 We are
unaware of any 9th Circuit cases involving an agency's inter-
pretation of
an executive order it was not charged with administering. But
when this
court has shown deference to agency interpretations of execu-
tive orders,
it has expressly noted that the agency was charged with
administering the
order. See Kester, 652 F.2d at 15; Cost of Living
Council, 472 F.2d at
1068-69. We think it reasonable to conclude, there-
fore, that when an
agency is not charged with administering an executive
order, this court
reviews the agency's interpretation of that order de novo.
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U.S.C. S 7106(b)(1), and instruct
subordinate officials to do
the same." 58 Fed. Reg. at 52202-03. There is
no question
that the Agency is subject to the provisions of Chapter 71
of
title 5, which prescribes the rights and obligations of federal
employees. There is also no question that the Order is manda-
tory and that
agencies failing to obey the Order are answer-
able to the President.
[1] We cannot conclude, however, that the language of the
Order constitutes
an election to bargain. As the D.C. Circuit
recently pointed out in a
related case, the Order does not state
that the President has elected to
negotiate with labor unions.
See National Ass'n of Gov't Employees, Inc.,
v. FLRA , 179
F.3d 946, 950 (D.C. Cir. 1999). Instead, it directs the head
of
each agency to negotiate and to instruct subordinates to do the
same. See id. The distinction between the two statements may
be subtle, but
as the FLRA noted, "directing another to take
an act is not necessarily the
same as undertaking the act
oneself." United States Dep't of Commerce,
Patent and
Trademark Office ("Commerce II"), 54 FLRA No. 43, at 19
(1998). This distinction is especially important given that the
President
easily could have used the term "election" if that is
what was
intended.5
_________________________________________________________________
5 The
Union argues that the FLRA has frequently looked at negotiated
language to
determine that an agency has made an election to bargain and
has not
required use of the word "elect." To support this argument, it
points to
three cases: National Treasury Employees Union, Chapter 97, 45
FLRA 1242,
1250 (1992); National Ass'n of Gov't Employees, Local R4-
75 Union, 24 FLRA
56, 62 (1986); Local 1917, American Fed'n of Gov't
Employees, 13 FLRA 77,
78 (1983). These cases, however, do not stand
for the proposition that an
executive order or agency statement can consti-
tute an election without
using the word "elect. " Rather, in each case, the
FLRA simply held that
when an agency has signed a collective bargaining
agreement containing
topics covered by section 7106(b)(1) -- such as
staffing levels -- the
agency has elected to bargain over those topics;
indeed, the agency has
already bargained over those topics. In the present
case, the Agency
refused to bargain over section 7106(b)(1) topics, so we
cannot point to
its agreement on such topics as evidence that it actually
elected to
bargain.
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[2] That the
President did not intend to make an election is
made clear by section 3 of
the Order. Section 3 states that the
Order is "intended only to improve the
internal management
of the executive branch and is not intended to, and
does not,
create any right to administrative or judicial review." It
seems
highly unlikely that a President who intended to make a
legally
enforceable election on behalf of all government agen-
cies would at the
same time declare that the order does not
create any judicially or
administratively enforceable rights.
The Union argues that section 3 does
not preclude a finding
that the Order constitutes an election under
section
7106(b)(1). Although it concedes that section 3's language
with
respect to judicial review prevents a party from enforc-
ing the order
standing alone, the Union maintains that it does
not seek to enforce the
order itself. Instead, it seeks to enforce
section 7106(b)(1)'s provision
for bargaining when an elec-
tion is made, and it relies on the Order only
to demonstrate
that an election has in fact been made.
[3] The Union's
argument is intriguing, as far as it goes.
But even if section 3 does not
bar us from giving effect to the
Order through enforcement of section
7106(b)(1), section 3 at
least demonstrates that the Order was not intended
to consti-
tute an election. Put another way, the Union's theory that
it
seeks only to enforce section 7106(b)(1) may resolve any
jurisdictional problems created by section 3, but the theory
cannot
overcome the clear implication of section 3, which is
that the Order was
not intended to constitute a legally enforce-
able election.
[4] The
Union also argues that its position is supported by
a guidance issued by
the Office of Personnel Management
("OPM"), which states that "bargaining
over the subjects set
forth in 5 U.S.C. S 7106(b)(1) is now mandatory, and
a failure
by agency managers to engage in such bargaining would be
inconsistent with the President's directive." Commerce II, 54
FLRA No. 43,
at 15 (quoting OPM "Guidance for Implement-
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ing Executive Order 12871"). However, the guidance does
not
state that the Order constitutes an election, only that it is man-
datory, and there has never been any dispute on that point.
The Union
argues that the Order could only be mandatory if
it constituted an election
because otherwise it would have no
mandatory effect; it would only be a
suggestion. But the Pres-
ident can discipline agency heads who fail to
follow the
Order, and in this sense the Order has a mandatory effect.
[5] Because the language of the Order is clear and because
the Union offers
no persuasive reason to depart from that lan-
guage, we conclude that
Executive Order 12871 does not con-
stitute an election to bargain.
Accordingly, the Agency did not
commit an unfair labor practice, and the
Union's petition for
review is denied.
PETITION DENIED.
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