Decisions Interpreting and Applying the Statute - "FLRA 20 Years 1979 - 1999"
". . . the FLRA was intended to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the Act." Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983)
Among the greatest challenges facing the FLRA from the outset has been interpreting and applying the terms of the Statute. In the course of the last 20 years, the Authority has issued nearly 7000 published decisions doing just this. Additional FLRA binding decisions have been issued in over 6000 representation cases by Regional Directors and nearly 700 unfair labor practice cases by Administrative Law Judges. Also, tens of thousands of non-precedential awards have been issued by arbitrators resolving grievances under negotiated grievance procedures. As the parties did not ask the Authority to review these Regional Director, Administrative Law Judge and arbitrator decisions, they do not serve as precedent for other cases; they are, nevertheless, binding applications of the Statute. Finally, approximately 900 decisions resolving negotiation impasses have been issued by the Panel.
Faced with a new Statute, virtually every case in the early years involved issues of first impression. For example, in 1979, the Authority ruled in Interpretation and Guidance (1979), that where either party to a grievance procedure negotiated prior to the effective date of the Statute objected to its continuation, renegotiation under § 7121 was necessary. Twenty years later, issues of first impression are still being presented. In 1997, the Authority set forth for the first time the framework for determining under § 7111 of the Statute whether a labor organization is subject to corrupt influences. Department of Military and Naval Affairs, New York National Guard (1997). In addition, the Authority continues to struggle with some issues that were raised and addressed in early decisions -- such as what standards should be used in determining whether proposals are negotiable procedures under § 7106(b)(2); what matters are permissive subjects of bargaining under § 7106(b)(1); and the scope of the Weingarten right under § 7114(a)(2)(B).
Statutory Sections Considered "Clear On Their Face"
Some sections of the Statute have been easily understood and applied. For example, courts have consistently held that, under § 7118, the Authority has "a broad congressional delegation of discretion . . . to fashion appropriate remedies for an unfair labor practice." NTEU v. FLRA (D.C. Cir. 1990). Consistent with this remedial power, the Authority has fashioned several remedies that, over the years, have become "traditional" in scope and application. For example, in Federal Correctional Institution (1982) the Authority concluded that it could issue status quo ante remedies in refusal to bargain cases even if the underlying decision that triggered bargaining was not itself negotiable. The Authority more recently set forth the standard by which it would evaluate requests for "non-traditional" remedies. See F.E. Warren Air Force Base (1996).
Sources Guiding How the Statute is Construed
There are many sections of the Statute, however, that have not been as easily construed and applied. Indeed, one section of the Statute that is frequently litigated -- § 7106(b), which sets forth exceptions to management's rights -- was characterized by then-Judge Scalia as containing "confusing duplicity." AFGE, Local 2782 v. FLRA (D.C. Cir. 1983). Given the negotiating process that led to enactment of the Statute, consulting the legislative history does not often clarify what Congress intended. Nevertheless, there are at least three independent sources of precedent that the Authority uses as guides for construing and applying these provisions.
- First, under § 7135(b) of the Statute decisions by predecessor entities to the Authority, such as the Federal Labor Relations Council (Council), continue unless and until they are superseded by Authority decisions. An example of the Authority's consideration and rejection of Council precedent is Department of the Air Force, Air Force Systems Command (1984) (Authority stated that Council decision concerning remedial authority would no longer be followed). An example of a decision to continue Council precedent is Sacramento Army Depot (1994) (Authority continued Council precedent concerning use of "dual purpose" documents to establish employee support for union decertification).
- Second, decisions by Federal courts reviewing private -sector arbitration awards provide the grounds to be applied by the Authority in reviewing awards under § 7122(a)(2). Consistent with this section, the Authority has, from the beginning, resolved exceptions to arbitration awards that allege so-called "private sector grounds" by applying private -sector law. See, e.g., AFGE, Local 2327 (1981) (on basis of private-sector precedent Authority rejected claim that arbitrator was required to specifically discuss disputed contractual provisions).
- Third, precedent of the National Labor Relations Board (NLRB) often is considered by the Authority in construing provisions of the Statute that are analogous to provisions of the National Labor Relations Act. For example, § 7114(a)(2)(B) -- the Weingarten right to union representation during certain investigatory examinations -- was intended by Congress to provide rights to Federal employees consistent with those provided in the private sector by the NLRB. Accordingly, the Authority often turns to NLRB precedent concerning the Weingarten right in the private sector in construing the right under the Statute. See, e.g., Federal Bureau of Prisons, Colorado (1998) (Authority stated that, as in the private sector, an employee's right to designate a particular representative is not unlimited). In other cases, however, the Authority has noted Congress' recognition that the Weingarten right might evolve differently in the private and Federal sectors. See Federal Bureau of Prisons, Safford (1990) (Authority discussed different approaches in Federal and private sectors to devising remedies for violations of the Weingarten right).
Laws, Rules and Regulations Outside the Statute Critical to Its Application
Resolving unfair labor practice complaints, negotiability appeals and arbitration exceptions often requires the Authority to interpret and apply laws, rules and regulations other than the Statute itself. Of course, the United States Constitution always takes precedence over any law enacted by Congress, including the Statute. In Department of the Army v. FLRA (D.C. Cir. 1995), for example, the doctrine of sovereign immunity was relied on by the reviewing Federal court of appeals, which held that the Statute does not constitute a waiver of sovereign immunity permitting the Authority to assess money damages other than back pay. In addition, the Statute expressly gives other laws, rules and regulations precedence over collective bargaining rights under the Statute in certain situations. For example, § 7117 provides that collective bargaining does not extend to any matter that is inconsistent with a Government-wide regulation.
As a result, the three-member Authority panel -- expected to develop expertise in Federal sector labor law -- has been required in many cases to reach decisions based on laws far afield from the Statute itself. In addition to the Constitution and Government-wide regulations mentioned above, these include organic statutes and authorization acts governing the agency- employer, and the rules and regulations that it has adopted. For example, in New Hampshire NationalGuard (1998), the Authority was required to interpret various provisions of the Department of Defense Appropriation Act of 1995, as well as a criminal statute, in determining whether the agency acted lawfully when it refused to permit the union to use official time for certain lobbying activities. The Authority's decision itself was reviewed, and affirmed, by the U.S. Court of Appeals for the First Circuit. Granite State Chapter, ACT v. FLRA (1st Cir. 1999).
The Role of the Federal Courts of Appeals
As mentioned earlier, one of the significant ways the Statute changed the Federal labor relations program was by authorizing judicial review of certain Authority decisions. The Federal courts are involved in interpreting and applying the Statute in several contexts.
- First, upon issuance of an unfair labor practice complaint, § 7123(d) permits the Authority to petition a United States district court for injunctive relief. An example of a case in which this occurred is FLRA v. Federal Deposit Insurance Corp. (D.C. Cir. 1991), where the agency was enjoined from refusing to recognize and enter into collective bargaining with a newly-certified labor organization.
- Second, the Statute provides in § 7123(b) for the Authority to file petitions in an appropriate United States court of appeals to enforce Authority orders. Although the Authority is not often required to pursue enforcement action, such actions have been maintained against agencies, see, e.g., FLRA v. Department of Air Force (D.C . Cir. 1984), and unions, see, e.g., FLRA v. AFGE, Local 987 (11th Cir. 1994).
- Third, § 7123(a) makes certain -- but not all -- final orders of the Authority subject to direct judicial review in any United States court of appeals (except for the Federal Circuit) in which the party aggrieved by the order resides or does business. On an average, over the past 20 years, 12 percent of the Authority decisions that are subject to judicial review have been appealed and decided on the merits by a Federal court. The annual percentage of decisions appealed has ranged from a high of 24 percent of Authority decisions issued in fiscal year 1989 to a low of 4 percent of Authority decisions issued in fiscal year 1994. The two categories of Authority decisions that are expressly excluded from direct review are those resolving exceptions to arbitration awards (unless the award involves an unfair labor practice) and resolving representation petitions. In addition to regularly declining jurisdiction over appeals directly challenging Authority decisions resolving arbitration exceptions, courts have declined jurisdiction over collateral challenges to an arbitration award. See Department of Health and Human Services v. FLRA (D.C. Cir. 1992). Further, the "final order of the Authority" requirement has led courts to rule that they do not have jurisdiction to review either the General Counsel's refusal to issue an unfair labor practice complaint, see, e.g.,Turgeon v. FLRA (D.C. Cir. 1982), or a Panel decision, Council of Prison Locals v. Brewer (D.C. Cir. 1984).
Appellate Court Decisions Interpreting the Statute
Judicial review of the merits of over 435 Authority decisions over the past 20 years has produced a body of law that has significantly shaped the interpretation and application of the Statute. There are numerous examples of Federal labor law doctrines that have been greatly influenced by judicial review. In some cases courts have expanded interpretations initially reached in Authority decisions; in others, they have narrowed the Authority's initial ruling about what a section of the Statute means.
One of the sections of the Statute that has been elucidated as a result of judicial review -- sometimes to expand bargaining and sometimes to narrow it -- is § 7106(b)(3), which requires bargaining over "appropriate arrangements." In AFGE Local 2782 v. FLRA (D. C. Cir. 1983), for example, the court disagreed with the Authority's interpretation of the term "appropriate" as too limited -- rejecting the Authority's "direct interference" test in favor of one that measures whether a particular proposal interferes with a management prerogative to an "excessive degree." The consequence of this ruling was to expand the scope of collective bargaining; the decision became the underpinning of the excessive interference test adopted by the Authority for determining whether a proposal is a negotiable arrangement. Kansas Army National Guard (1986).
On the other hand, in Minerals Management Service v. FLRA (D.C. Cir. 1992), the court disagreed with the Authority's interpretation of the term "arrangement," holding that § 7106(b)(3) applies "only where the Authority has identified the reasonably foreseeable adverse effects that will flow from some management action; and only when the proposed arrangement is tailored to benefit or compensate those employees suffering those adverse effects." The same year, the same court ruled in Office of Chief Counsel, IRS v. FLRA (D.C. Cir. 1992) that adverse effects could not flow from the denial of a negotiated benefit. The result of these judicial decisions was to narrow the scope of collective bargaining.
Decisional law construing the meaning of the term "necessary" under § 7114(b)(4), which defines the circumstances in which an agency is obligated to provide a union information it has requested, also has been greatly influenced by judicial review. The Authority has issued nearly 200 decisions (almost 3000 pages) turning on whether requested information was "necessary," and courts have issued over 14 decisions reviewing Authority rulings on this subject. These numbers do not include the numerous Authority and judicial decisions resolving whether agencies are obligated to provide unions with unit employees' names and home addresses -- a particular subset of information cases that clogged the Authority's and the courts' dockets for several years and ultimately required resolution by the Supreme Court. Prior to 1997, no Authority decision -- whether finding that requested information (excluding name and home addresses) was necessary, or finding that it was not -- was affirmed in court.
In a series of decisions starting with NLRB v. FLRA (D.C. Cir. 1992), the D.C. Circuit and other courts elucidated their view of the meaning of the statutory term "necessary," ruling that the Authority must consider both the union's "particularized need" for the information sought and the agency's "countervailing anti-disclosure interests." In Internal Revenue Service, Washington, D.C. (1995), the Authority followed the courts' directions and explained how it would determine when such "particularized need" was established. The Authority emphasized that both parties must be clear with each other -- the union about its need and the agency about its countervailing interests -- at the time information is requested. In doing so, the Authority reasoned that a policy based on direct and timely exchange about the respective agency and union interests may enable them to find a solution that accommodates both labor and management's concerns -- serving the important Statutory purposes of promoting collective bargaining and facilitating the amicable resolution of disputes.
Since this 1995 Authority decision, the new standard and its application has been challenged in the U.S. Court of Appeals for the District of Columbia Circuit in three cases. In contrast to previous appeals on the subject, the Authority's decisions were upheld in all three cases. In two of these cases, the Authority ruled that agencies had committed unfair labor practices by failing to provide requested information to unions. Department of the Air Force, Scott Air Force Base v. FLRA (D.C. Cir. 1997) and Department of Justice, INS, Northern Region v. FLRA (D.C. Cir. 1998). In the third, the Authority held that the union had failed to articulate a particularized need for documents and that, therefore, the agency had not improperly refused to provide the documents. AFGE, Local 2342 v. FLRA (D.C. Cir. 1998).
Split Appellate Court Rulings and Supreme Court Review
The difficulty in untangling the meaning of certain sections of the Statute has led Federal courts reviewing Authority decisions to disagree in their interpretation of what the Statute requires. These "Circuit court splits" have been resolved by the Supreme Court in six decisions over the past 20 years, with a seventh case recently argued and awaiting decision by the Court. In all seven cases, the Authority was defending its view of the Statute against the arguments by the United States Solicitor General, on behalf of an agency-employer, that the Authority's reading of the Statute was improperly expansive. It is relatively unusual for two Executive Branch agencies to appear before the Supreme Court in the roles of both petitioner and respondent -- leading more than one Supreme Court Justice to express puzzlement over the situation. Of course, were the FLRA to simply agree with an agency-employer's view of what the Statute requires, there would be no need for Congress to have established an independent adjudicatory panel to decide labor law disputes between Federal agencies and unions under the Statute.
In four of the cases decided by the Supreme Court, the Authority's construction of the Statute was rejected:
- In Bureau of Alcohol, Tobacco and Firearms v. FLRA (1983), the Court ruled that § 7131 does not require the payment of travel expenses and per diem allowances for union employee negotiators.
- In FLRA v. Aberdeen Proving Ground (1988), the Court held that § 7117(b) provides the exclusive procedure for determining whether there is a compelling need for an agency regulation.
- In Department of the Treasury, Internal Revenue Service v. FLRA (1990), the Court ruled that the Statute precludes bargaining over proposals that would subject matters included within § 7106(a)(2)(B) to contractual grievance procedures unless those proposals involve conformity with applicable laws.
- In U.S. Department of Defense v. FLRA (1994), the Court held that disclosure of the home addresses of bargaining unit employees to a union is prohibited under the Privacy Act. This question had spawned the largest number of ULP charge filings and cases litigated in the FLRA's history.
In two of the decided cases, the Supreme Court agreed with the Authority's construction of the Statute:
- In Fort Stewart Schools v. FLRA (1990) the Court upheld the Authority's determination that certain agencies were required to bargain over employee wages and fringe benefits.
- In NFFE, Local 1309 v. FLRA (1999), the Court agreed with the Authority that the Statute does not clearly prohibit mid-term bargaining, holding that it would defer to the Authority's determination on the issue.
Finally, the Court's decision is awaited in a case argued recently, National Aeronautics and Space Administration v. FLRA, involving the issue of whether an investigator employed by an agency's Inspector General is properly considered a "representative of the agency" for purposes of § 7114(a)(2)(B), which establishes the Weingarten right for Federal employees.
The effect on Federal sector labor law of the Supreme Court's decisions can be far reaching. Based on the Supreme Court's decision in Internal Revenue Service v. FLRA, described above, the Authority reevaluated the test used to determine whether an arbitration award is deficient as contrary to management's rights. The Authority held that an award that affects management rights under § 7106(a)(2) may not provide a remedy except for a violation of applicable law or a contract provision that was negotiated pursuant to § 7106(b), and that an award remedying such a violation must reconstruct what management would have done if it had acted properly. Department of the Treasury, Bureau of Engraving and Printing (1997).
Judicial Review of Authority Decisions
A study of the Authority's decisions reported on the occasion of the Statute's 10th anniversary, identified the Authority's failure to achieve greater judicial deference to its administrative expertise as a significant problem for Federal sector labor relations. (Patricia W. Ingraham and David H. Rosenbloom, eds., The Promise and Paradox of Civil Service Reform, University of Pittsburgh Press (1992) at 154). The study examined statistics as well as comments in judicial opinions reviewing Authority decisions through 1987. Among the author's basic premises was that: (1) "inconsistencies and unclarities in FLRA legal decisions and interpretations make it difficult for the parties to collective bargaining to know what the ground rules are"; and (2) molding the Statute into a "coherent body of law" is essential for the "creation and regulation of a vigorous bilateral collective bargaining system." Identifying this as an area where improvement was needed, the author concluded that "labor relations in the federal service would benefit substantially if the FLRA could command greater deference from the federal judiciary."
On its 20th anniversary, a review of appellate statistics and judicial comments indicates that this challenge is being met. Authority decisions issued in the last four years and reviewed on the merits by Federal courts were the subject of favorable appellate opinions in approximately 84 percent of the cases, as compared with an overall favorable rate of only 52 percent for Authority decisions reviewed in the preceding 16 years. A number of factors undoubtedly contributed to this improvement, including a reduced number of appeals due to the general reduction in the number of cases litigated before, and decided by, the Authority. The increased judicial deference was not, however, a random accomplishment: it followed a deliberate focus on the quality of FLRA decisions during the period beginning in 1995.
In its decision on March 9, 1999, in NFFE, Local 1309 v. FLRA, the Supreme Court stated:
The Authority would seem better suited than a court to make the workplace-related empirical judgments that would help properly balance . . . policy-related considerations. . . . [T]he Agency's policy arguments illustrate the need for the Authority's elaboration or refinement of the basic statutory collective-bargaining obligations; they illustrate the appropriateness of judicial deference to considered Authority views on the matter . . . .