[ v29 p380 ]
29:0380(40)NG
The decision of the Authority follows:

29 FLRA NO. 40



AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 32

              Union

      and

OFFICE OF PERSONNEL MANAGEMENT

              Agency

Case No. 0-NG-917

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). The case presents issues concerning the negotiability of three proposals. Proposals 1 and 2 are found to be negotiable. The petition for review of Proposal 3 is dismissed.

II. Proposal 1

The agency will take whatever action it can to ensure that prices in the cafeteria do not rise faster than the income of employees, including subsidizing the prices.

A. Background

This proposal arose during bargaining between the parties pursuant to the Authority's decision in American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, Washington, D.C., 18 FLRA 409 (1982). In Office of Personnel Management the Authority held the following proposal negotiable: "The agency will take whatever action it can to ensure that prices in the cafeteria do not rise faster than the income of employees." During the ensuing negotiations, the Union added the language "including subsidizing the prices" to its proposal.

B. Positions of the Parties

The Agency interprets this proposal as requiring it to aid financially the employee cafeteria which is located in its building at 1900 E Street, N.W. in Washington, D.C. and operated by a private contractor under contract with General Services Administration. According to the the Agency, the proposal interferes with management's right to determine its budget under section 7106(a) of the Statute because it would require the Agency to add a particular program or operation to its budget. Moreover, the Agency asserts that an expenditure to assist the cafeteria would violate Federal statute as it would constitute an unauthorized spending of funds which have been appropriated by Congress to carry out the Agency's mission. In addition, the Agency contends that the aid required by the proposal would result in the Agency subsidizing cafeteria prices for nonbargaining unit employees.

The Union asserts that cafeteria prices are a mandatory bargaining subject. With regard to the issue of the Agency's budget authority, the Union argues that the President has sole responsibility for the formulation of the Government's budget. Further, the Union states that Congress most likely intended the term "budget" in section 7106(a) of the Statute to mean that matters going to the heart of management control are not within the duty to bargain. Finally, the Union asserts that it is attempting to negotiate only the Agency's willingness to act to subsidize prices. If the Agency agrees to the proposal, the Union states that, in the absence of appropriate authorization, it must persuade Congress to authorize employee cafeteria subsidies.

C. Analysis and Conclusion

1. The Proposal Does Not Violate Law

This proposal requires the Agency to take action only if cafeteria prices rise faster than employees' salaries. In that event, the proposal suggests that one option the Agency might use is to subsidize prices in the employee cafeteria. In addition, the phrase "take whatever action it can" limits the Agency's actions to those that are within its lawful discretion. Thus, we reject the Agency's arguments that the proposal would absolutely require that the Agency subsidize cafeteria prices without regard to the legality of such action.

In support of its argument that in the absence of specific congressional authority to subsidize prices in an employee cafeteria it cannot spend funds for that purpose, the Agency relies on 31 U.S.C. 628, superseded by 31 U.S.C. 1301(a), which requires that funds be applied solely to objects for which appropriations were made. See, for example, 55 Comp. Gen. 1291 (1976); 29 Comp. Gen. 420 (1950). However, there is nothing in the record in this case which indicates that the Comptroller General has held that OPM is without legal authority to subsidize cafeteria prices in the limited circumstances contemplated by this proposal.

In an Unpublished Decision of the Comptroller General, B-169141 (March 23, 1970), the issue was whether or not the Railroad Retirement Board was authorized to pay the monthly franchise fee for cafeteria service to a food service contractor. In that case (1) the contract with the provider of cafeteria services had terminated, (2) the General Services Administration had been unsuccessful in acquiring bids conforming to Government specifications from other contractors, (3) the only basis on which cafeteria service could be provided was a franchise fee basis, and (4) the Board had concluded that the maintenance of the service was essential to its operations. The Comptroller General concluded that the payment of the franchise fee in these circumstances "would not be objected to although such obligation of appropriated funds is unusual and cannot be justified as a general proposition." The Comptroller General also suggested, however, that the matter be brought to the attention of the appropriate Congressional committees since it appeared that the "Board must continue over an extended period to help finance the operation of the cafeteria(.)"

Moreover, the Comptroller General has determined that in particular circumstances appropriated funds may be used to assist employee cafeterias even in the absence of specific Congressional authorization, at least for short periods of time. Unpublished Decision of the Comptroller General, B-169141 (November 17, 1970). In that case, the Secretary of Transportation requested a determination as to whether or not appropriated funds could be used to partially subsidize the operation of the employee cafeteria at the Transportation Systems Center in Cambridge, Massachusetts. The request noted that (1) there was a lack of other eating facilities in the vicinity of the Center, and (2) payment of a monthly administrative fee to the contractor was the only feasible alternative to closing the cafeteria. The Comptroller General noted that the situation in this case "closely parallel(ed)" the one involved in the Railroad Retirement Board decision and found no legal objection to the proposed arrangement.

The Comptroller General again discussed this issue in a more recent case. In the Unpublished Decision of the Comptroller General, B-716943 (March 21, 1985), the Acting Public Printer requested a decision as to whether the Government Printing Office could directly or indirectly provide funds to the nonprofit employee association that operates the GPO employee cafeteria. The Acting Public Printer included in the request the following: (1) the cafeteria was incurring losses and was in danger of ceasing operations, (2) cafeteria services were essential because they enabled employees to comply with a 30-minute lunch period, and (3) the cafeteria was an "absolute necessity" for employees working other than the normal day shift because no suitable restaurant facilities were available. The Acting Public Printer deemed the cafeteria "necessary for the GPO to accomplish its mission." The Comptroller General concluded that "GPO has adequately demonstrated that subsidizing the operation of the employee cafeteria is essential to its operations(.)" As in the case involving the Railroad Retirement Board, the Comptroller General suggested that the matter be brought to the attention of the appropriate Congressional committee if it involved ongoing assistance.

In all three cases, the Comptroller General authorized the expenditures requested. However, as is apparent from the decisions, the requests involved unusual circumstances and were supported by adequate demonstrations that the expenditures were necessary for the functioning of the agencies involved. Indeed, as recognized by the Comptroller General in the case involving the Railroad Retirement Board, the use of appropriated funds for these matters "cannot be justified as a general proposition."

We conclude that the Comptroller General decisions support two conclusions concerning the negotiability of the Union's proposal. First, the decisions support a conclusion that the Agency has discretion to take the actions contemplated by the proposal. We find no indication that this discretion is sole and exclusive or for any other reason is not subject to negotiations.

Second, we believe that the Comptroller General decisions show that the Agency's discretion to subsidize prices is limited to circumstances like those discussed in the cases. The fact that the discretion is not unlimited, however, does not provide a basis for concluding that the proposal is not negotiable. Rather, the Agency is obligated to negotiate to the extent of its discretion. See Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). In the context of Proposal 1 here, there may, in fact, be no need for the portion of the proposal concerning subsidies to come into play because the portion of the proposal requiring the Agency to "take whatever action it can" may obviate the need for subsidies.

Consequently, the Agency's claim that it cannot expend appropriated funds to subsidize operations in an employee cafeteria without specific Congressional authorization cannot be sustained.

2. The Proposal Does Not Violate the Agency's Right to Determine Its Budget

The Authority has determined that a proposal which by its terms prescribes a particular program or operation to be included in an agency's budget or an amount to be allocated in a budget for a program or operation would directly interfere with an agency's right to determine its budget and would be nonnegotiable. Similarly, a proposal which demonstrably would result in a significant and unavoidable increase in costs which would not be offset by compensating benefits would be inconsistent with an agency's right to determine its budget. American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604, 608 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).

As we stated in Section C.l. above, subsidizing cafeteria prices is only one action that the Agency might take to maintain parity between food prices and employees' salaries. Thus, this proposal does not necessarily prescribe, nor otherwise require, a particular program or operation to be included in the Agency's budget or an amount to be allocated in its budget for a particular program or operation. Further, since a cafeteria price subsidy would only arise if other actions failed to maintain parity between food prices and employee salaries, the Agency has not demonstrated that this proposal would result in a significant and unavoidable increase in costs or that any increase in costs would not be offset by compensating benefits. Therefore, the Agency has not established that this proposal is inconsistent with section 7106(a)(1) of the Statute.

The Agency also argues that this proposal would require it to subsidize prices for nonbargaining unit employees. This claim cannot be sustained. There is nothing in the express language of the proposal, or in the record in this case, which indicates that under this proposal a subsidy would be granted to any individuals outside the bargaining unit. In addition, the fact that a subsidy for bargaining unit employees may result in an increase in prices for individuals outside the unit does not render an otherwise negotiable proposal nonnegotiable. American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 22 FLRA No. 49, slip op. at 2-5, (1986), petition for review filed sub nom. AFGE, Local 32, AFL - CIO v. FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986).

We conclude for the foregoing reasons that the proposal does not (1) violate law, (2) interfere with management's section 7106 right to determine its budget, or (3) affect nonbargaining unit employees. Thus, we find that Proposal 1 is within the duty to bargain.

III. Proposal 2

The Authority Members reach different conclusions and have different opinions on Proposal 2. The decision and order finding Proposal 2 to be negotiable, as well as separate opinions of Chairman Calhoun and Member McKee and Member Frazier's opinion concurring in part and dissenting in part on Proposal 2 immediately follow this decision.

IV. Proposal 3

Repromotion eligibles (employees demoted in a reduction in force or separated in a reduction in force and subsequently rehired at a lower grade) will be selected for positions at higher grades, up to their former grades, by being selected in preference to applicants from all sources except reemployment eligibles.

A. Positions of the Parties

The Agency argues that this proposal excessively interferes with management's right to select under section 7106(a)(2)(C) of the Statute. Specifically, the Agency contends that it does not refer to management's right to determine whether or not to fill a position or to determine an employee's qualifications for a vacancy and it operates without limitation until an employee is promoted up to the grade held at the time of the reduction in force (RIF) action. In addition, the Agency states that the proposal conflicts with the selection procedures in the Federal Personnel Manual (FPM) chapter 335 because it prevents the Agency from filling a vacancy by selecting from any appropriate source.

The Union argues that the proposal is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Further, the Union asserts that the requirements of FPM chapter 335 do not apply to repromotion eligibles. The Union interprets section 1-5 (c) (6) of FPM chapter 335 as giving the Agency discretion to repromote employees without considering applicants from other sources as provided in Merit Promotion Requirement 1-4. Thus, the Union concludes that Requirement 1-4 should not restrict bargaining on this proposal.

B. Analysis and Conclusion

We conclude, in agreement with the Agency, that this proposal would prevent management from determining the qualifications of repromotion eligibles for vacancies. We note also that the proposal does not specifically reserve to management the right to decide to fill a position. However, we find that this requirement is implicit in the proposal. By requiring that a repromotion eligible be "selected" in preference to other applicants, the proposal logically only applies after management decides to fill a position.

Therefore, the proposal is to the same effect as the provision in National Federation of Federal Employees, Local 1450 and U.S. Department of Housing and Urban Development, 23 FLRA No. 1 (1986). The provision in that case required that when a RIF notice issued, management would fill vacancies with affected employees who met the minimum standards for the positions. The Authority determined that the provision excessively interfered with management's right to fill positions because it precluded the agency from determining the requisite qualifications for vacant positions, that is, any qualifications beyond the minimum requirements. For that reason, the Authority held that the provision did not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. See also National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA No. 105 (1986), in which Proposal 2 was held to excessively interfere with management's right to select under section 7106(a)(2)(C) because it did not permit management to make qualifications determinations before offering vacancies at their former duty stations to employees transferred because of a RIF.

Unlike Proposal 2 in this case, Proposal 3 does not require employees to be qualified for the positions for which they might be selected under the proposal. Furthermore, in its reply brief the union fails to respond to the Agency's assertion that the proposal does not permit management to determine employees' qualifications for vacancies. In these circumstances, we find that this proposal precludes management from determining an employee's qualifications for a particular vacancy. Thus, we hold, for reasons discussed more fully in U.S. Department of Housing and Urban Development and Kansas Army National Guard, that Proposal 3 excessively interferes with management's right to select under 7106(a)(2)(C) and, therefore, it is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In view of our decision, it is unnecessary to reach the Agency's other arguments.

For the reasons set forth above, we find that Proposal 3 excessively interferes with management's right to select under section 7106(a)(2)(C). Therefore, it does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and is not within the duty to bargain.

V. Order

The Agency must negotiate upon request, or as otherwise agreed to by the parties, concerning Proposal 1. 1 The petition for review as to Proposal 3 is dismissed.

Issued, Washington, D.C., September 30, 1987.

Jerry L. Calhoun Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

DECISION AND ORDER ON PROPOSAL 2

I. Proposal 2

Reemployment eligibles (employees who are separated through reduction in force) will be reemployed at former or lower grades in positions for which they qualify by being selected in preference to applicants from all other sources.

A. Positions of the Parties

The Agency alleges that the proposal is nonnegotiable because it would require that management negotiate rights and benefits for former employees who are not within the meaning of "employees" in section 7102(a)(2) of the Statute. Even if the proposal were interpreted to include only bargaining unit employees, the Agency states that the selection preference would not operate until an employee was laid off and thus the individual affected would no longer be an employee. In addition, by mandating the selection of former employees, the Agency argues that the proposal interferes with management's right under 7106(a)(2)(C) of the Statute to select from any appropriate source.

The Union claims that reemployment benefits for current employees are conditions of employment which are within the Agency's duty to bargain. The Union also argues that this proposal is negotiable as an appropriate arrangement for employees adversely affected by a reduction in force (RIF) within the meaning of section 7106(b)(3) of the Statute.

B. Conclusion

For reasons set forth in our separate opinions, we conclude that Proposal 2 is negotiable. As a result, we will no longer follow the Authority's previous cases which hold otherwise. 2

II. Order

Upon request or as otherwise agreed to by the parties, the Agency must bargain concerning Proposal 2. 3

Issued, Washington, D.C.,September 30, 1987.

Jerry L. Calhoun, Chairman

Jean McKee Member

FEDERAL LABOR RELATIONS AUTHORITY

Opinion of Chairman Calhoun on Proposal 2

I. Summary of Opinion

In my opinion, Proposal 2 interferes with the Agency's right to select under section 7106(a)(2)(C) but not to an excessive degree. Applying the Authority's excessive interference standard enunciated in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), I conclude that Proposal 2 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

The proposal would require the Agency to select reemployment eligibles separated through a RIF for positions for which they qualify. Although the proposal does not expressly reserve to management the right to decide to fill a position, it is clear from the record that the Union intended this proposal to take effect after management determined to fill a vacancy. See Union Reply Brief at 19-20. Moreover, this requirement is implicit in the proposal. By requiring that a reemployment eligible be selected in preference to other applicants, the proposal logically applies only after management decides to fill a position.

The disputed proposal is to the same effect as proposals previously found to be negotiable or nonnegotiable solely on the basis of whether the bargaining unit employees involved are subject to the Federal Personnel Manual. For employees who are subject to the FPM, proposals like Proposal 2 were found to be nonnegotiable because although they were appropriate arrangements under section 7106(b)(3), they were inconsistent with FPM chapter 335, subchapter 1-4, Requirement 4--a Government-wide regulation. 4 For employees who are not subject to the FPM, proposals similar to Proposal 2 have been found to be negotiable appropriate arrangements under section 7106(b)(3) of the Statute because there were no applicable Government-wide regulations to restrict bargaining under section 7117 of the Statute. 5

I believe that the situation created by these cases--where collective bargaining obligations involving matters vital to bargaining unit employees differ based only on whether the employees are subject to the FPM--may be the kind of anomalous situation referred to in American Federation of Government Employees, Local 2782 v. FLRA, 803 F.2d 737, 742 (D.C. Cir. 1986), where the court stated the following:

We leave to another day the anomalous situation which would be created by an OPM regulation, as interpreted by the Authority without resort to OPM, having the effect of limiting the scope of proposals subject to collective bargaining where the proposal concerns a subject matter that Congress clearly intended to be 'appropriate' for bargaining.

As a result, I have reexamined the relationship among the various portions of the FPM as well as the relationship between the FPM and section 7106(b)(3). I now conclude that proposals such as Proposal 2 in the case now before the Authority are negotiable whether or not the employees involved are subject to the FPM.

In my view, the instant proposal is negotiable for two independent reasons. First, subchapter 1-5(c) of chapter 335 provides discretion for the agency to except the selection of reemployment eligibles from coverage of its merit promotion plan. Under Authority precedent, this discretion may be exercised through negotiations. Second, Requirement 4 constitutes a restatement of the statutory right to make selections under 7106(a)(2)(C) of the Statute. By referring to that "right," Requirement 4 may not be construed as a greater bar to bargaining than the statutory right itself. In addition, I reject the Agency's argument that the proposal is nonnegotiable because it does not concern "employees" within the meaning of the Statute.

I will discuss these reasons separately and consider their interrelationship.

II. Whether the Proposal Concerns "Employees"

The Union states that the proposal is intended to benefit current employees who are subsequently separated through a RIF. This statement is consistent with the plain wording of the proposal. Further, it is clear that the proposal is intended to ameliorate the adverse effects of a RIF, effects which occur as a result of current employment.

Accordingly, I reject the Agency's argument that the proposal is nonnegotiable because it does not concern 'employees' within the meaning of section 7102(a)(2).

III. Agency Discretion under the FPM

I conclude that bargaining over Proposal 2 is consistent with the Agency's discretion under subchapter 1-5(c). Subchapter 1 of chapter 335 of the FPM, of which Requirement 4 is a part, sets forth "General Provisions" governing merit promotion procedures. Subchapter 1-1 states that the chapter "provides the framework for ensuring fair consideration and merit selection while affording agencies maximum flexibility to develop, negotiate and manage their own merit promotion programs." (Emphasis supplied.) Subchapter 1-2 contains definitions, and subchapter 1-3 concerns responsibilities for ensuring that merit promotion plans are established in accordance with applicable requirements.

Requirement 4 is part of subchapter 1-4 which identifies five "Merit Promotion Requirements." It was promulgated by the Office of Personnel Management pursuant to its responsibilities under 5 U.S.C. 3301 and 3302 and Executive Order 10577, as amended, and provides as follows:

Selection procedures will provide for management's right to select or not select from among a group of best qualified candidates. They will also provide for management's right to select from other appropriate sources, such as reemployment priority lists, reinstatement, transfer, handicapped, or Veterans Readjustment eligibles or those within reach on an appropriate OPM certificate. In deciding which source or sources to use, agencies have an obligation to determine which is most likely to best meet the agency mission objectives, contribute fresh ideas and new viewpoints, and meet the agency's affirmative action goals.

Subchapter 1-5(b) sets forth the personnel actions to which promotion plans apply. 6 Subchapter 1-5(a) sets forth the actions to which promotion plans do not apply. 7 Subchapter 1-5(c) provides that "(a)gencies may at their discretion except other actions from their plans." (Emphasis supplied.) It states that the actions which may be excepted "include, but are not limited" to seven actions, including the following: (1) selection of candidates from a reemployment priority list for a position at a higher grade than the last one held, and (2) repromotion to a grade or position from which an employee was demoted without personal cause. 8

In my view, subchapter 1-5(c) sets forth a simple proposition: management has discretion to except actions from its merit promotion procedures. Proposal 2 in this case does no more than require the Agency to exercise its discretion under subchapter 1-5(c) through negotiations. I do not read parts (a) and (b) of subchapter 1-5 as providing that this discretion is vested solely and exclusively with the agency. Compare my opinion in Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA No. 71 (1987), petition for review filed sub nom. Overseas Education Association, Inc. v. FLRA, No. 87-1279 (D.C. Cir. June 25, 1987). Further, unlike the situation discussed in my opinion in American Federation of Government Employees, AFL - CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986), I find no strong public policy considerations in this case which would warrant a finding that the discretion is not subject to bargaining. To the contrary, I believe that there are persuasive reasons in this case for finding that the Agency's discretion is bargainable. Like the agency's discretion to make recommendations discussed by the court in Library of Congress v. FLRA, 699 F.2d 1280 (1983), absent a determination that the discretion is negotiable, "these employees would effectively be written out of the bargaining process guaranteed them by the (Statute); they would have absolutely no input into decisions that are at the heart of their conditions of employment." Id. at 1289.

In my view, Proposal 2 is like the single proposal in National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980), where the Authority concluded that a proposal concerning parking spaces was not inconsistent with provisions in the Federal Property Management Regulations (FPMRs). In that case, the Authority stated the following:

(T)he fact that under the FPMR an agency has discretion to decide whether to relinquish a given space or retain it for a particular use does not mean that the agency is thereby precluded from exercising its discretion to make that decision through the process of negotiations with an exclusive representative.

Id. at 760. This conclusion is also consistent with subchapter 1-1 which states in relevant part that chapter 335 "provides the framework for ensuring fair consideration and merit selection while affording agencies maximum flexibility to . . . negotiate . . . their own merit promotion plans."

In a previous case involving a proposal requiring the repromotion of an employee demoted without personal cause--an action identified as one which may be excepted from the coverage of a merit promotion plan under subchapter 1-5 (c) (6) --the Authority found that the reference to an agency's "discretion" to except actions from its promotion plan in subchapter 1-5(c) was "not clear on its face." Decision and Order on Motion for Reconsideration in American Federation of Government Employees, AFL - CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 19 FLRA 1187, 1188 at n.4 (1985). Accordingly, the Authority found that the proposal was nonnegotiable because it was inconsistent with Requirement 4.

The Authority's decision was affirmed by the United States Court of Appeals for the D.C. Circuit. AFGE v. FLRA, 803 F.2d 737 (D.C. Cir. 1986). The court examined the various portions of subchapter 1 of chapter 335 of the FPM, and found that the Authority had "rightly concluded" that the proposal was inconsistent with the FPM. Id. at 741. In particular, the court stated the following about subchapters 1-4 and 1-5:

(T)he structure of section 1-5 suggests that subsection (c) is properly construed not as creating possible instances in which management may forfeit the right under Requirement 4 . . . but as establishing a specific list of personnel actions to which the competitive procedures need not apply. This reading comports both with the remainder of section 1-5, and more importantly, with section 1-4. By providing that competitive procedures need not apply to repromotions, subsection (c) (6) of section 1-5 states, in effect, that an agency may provide that repromotion eligibles do not have to be on the list of "best qualified candidates" for promotion in order to be promoted. This is in accord with the direction in Requirement 4 of section 1-4 that management retain the right to select from "other appropriate sources"--which could include a list of repromotion eligibles--as well as the group of "best qualified candidates."

Id.

The Court's decision did not specifically discuss whether the Agency's discretion under subchapter 1-5(c) could be exercised through negotiations.

My conclusion that the Agency's discretion under subchapter 1-5(c) may be exercised through negotiations does not result in an inconsistency between subchapter 1-5(c) and Requirement 4. The Court of Appeals characterized subchapter 1-5 (c) (6) as identifying one of the appropriate sources from which management has the right to select under Requirement 4. AFGE v. FLRA, 803 F.2d at 741. In my view, however, it does more. Subchapter 1-5 recognizes that while management has the right to select from all appropriate sources, it also has the discretion to choose from one appropriate source. That is, management may determine that its promotion plan, which incorporates its right to select, does not apply to certain actions. There is no indication that the action contemplated by Proposal 2 (selection of reemployment eligibles at their former or lower grades) is not within the Agency's discretion, especially since selection of a reemployment eligible at a higher grade is identified as an action which may be excepted. Subchapter 1-5(c)(5).

I appreciate Member Frazier's concern about the extent to which the Authority has been accorded deference by the courts when it has interpreted provisions outside the Statute. I am unable, however, to translate that concern into a finding that an advisory opinion should be sought from OPM in this case. Member Frazier's preference for that course of action appears to be based on four reasons: (1) my interpretation of the FPM may be inconsistent with that of the United States Court of Appeals for the D.C. Circuit; (2) the interpretation is "novel"; (3) the interpretation is a significant departure from established Authority precedent which is based, to a large extent, on OPM's interpretation of the provision involved; and (4) the interpretation departs from OPM's previous interpretation.

To begin with, OPM is a party to this litigation. In view of this fact, I believe that any advisory opinion from OPM in this matter would shed little, if any, light on the issue. Indeed, Member Frazier recognizes that OPM's role as a party in this case makes this course of action awkward, at best, when he states that he would "ask both the Union and the Agency (that is, OPM) to address the question of whether OPM's interpretation of its own Government-wide regulations in matters concerning itself is consistent with that which applies to other agencies throughout the Government." In my view, it is implausible to expect OPM to respond that it interprets the FPM one way for itself and another way for other agencies.

Next, I note that it is impossible to predict with any accuracy the courts' response to the interpretation I have suggested. Although I appreciate the fact that the courts may or may not disagree with me, I believe that I am obligated to decide this matter in the same way I am obligated to decide other difficult questions presented by external laws and regulations. My inability to predict judicial reaction provides no basis, in my view, for seeking OPM's opinion on the matter.

Member Frazier characterizes my interpretation as "novel." I find nothing novel about fulfilling my responsibilities under the Statute; that is, considering the relationship among various, often competing, provisions of law and regulation and resolving those matters consistent with Congressional intent. In Overseas Education Association, Inc. and Department of Defense Dependents Schools, 22 FLRA No. 34 (1986), aff'd sub nom. Overseas Education Association, Inc. v. FLRA, No. 86-1491 (D.C. Cir. August 28, 1987), for example, the Authority interpreted various provisions of the Department of State Standardized Regulations--provisions found to constitute Government-wide regulations--without seeking an advisory opinion from the issuing agency. See also American Federation of Government Employees, AFL - CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA No. 66 (1987) (Provision 3--where the Authority interpreted regulations of the Occupational Safety and Health Administration without benefit of an advisory opinion); and National Federation of Federal Employees and General Services Administration, 24 FLRA No. 45 (1987) (where the Authority rejected the agency's contentions that the union's proposals were inconsistent with Government-wide regulations issued by the agency in the case and did not seek an advisory opinion).

Further, I believe that my interpretation is consistent with Authority precedent dating back at least to 1980. See Internal Revenue Service, 3 FLRA 748. Indeed, the Authority's analysis of the Government-wide regulations involved in that case is instructive on this point. In that case, the Authority sought from the General Services Administration--an agency which was not a party to the litigation--an advisory opinion on the interpretation of a regulation promulgated by GSA. The Authority adopted GSA's interpretation of the technical aspects of the regulation. The Authority, however, rejected GSA's opinion as to the labor relations implications of the regulation. The Authority stated:

GSA did not advert to any provision (in the regulations which) would preclude the agency from exercising its discretion regarding the particular matter herein by negotiation. Instead, the conclusion that the union's proposal conflicts with (the regulations) is based on the unsupported determination that the agency's decision . . . must be made by the agency within its sole and exclusive discretion, and thus, that the decision is not subject to the obligation to bargain. Under section 7105 of the Statute, however, only the Federal Labor Relations Authority is empowered to resolve issues regarding whether the duty to bargain extends to a particular matter.

Id. at 760-61 (footnote omitted). The Authority concluded, contrary to GSA, that the union's proposal was negotiable.

Finally, Member Frazier would request an advisory opinion from OPM because my interpretation departs from previous Authority precedent concerning this regulation, and departs from OPM's interpretation. I acknowledge that my interpretation differs from that in previous Authority decisions, including some in which I participated. However, I do not see a connection between this fact and a need to seek OPM's opinion in this matter. Moreover, the fact that my interpretation differs from OPM's is irrelevant, in my view.

In sum, I find no persuasive reasons for seeking an advisory opinion from the Agency in this case.

IV. Relationship Between the FPM and the Statute

Requirement 4 is essentially a restatement of section 7106(a)(2)(C) of the Statute, which provides that management has the right "with respect to filling positions, to make selections for appointments from--(i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source." In fact, Requirement 4 specifically refers to "management's right" to select.

Of course, management's right to select is subject to section 7106(b)(3), which provides that nothing in section 7106 shall preclude an agency and a union from negotiating "appropriate arrangements for employees adversely affected by the exercise of any authority under (section 7106) by such management officials." The Authority has held that the standard to be applied in determining whether a proposal is a negotiable appropriate arrangement is whether the proposal excessively interferes with the exercise of the management right. Kansas Army National Guard, 21 FLRA No. 4 (1986). Indeed, as stated by the Court of Appeals for the D.C. Circuit, "negotiable provisions for adversely affected employees can contravene what would in other circumstances be management prerogatives." American Federation of Government Employees, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983). Unlike the Statute, however, Requirement 4 does not indicate that management's right to select may be limited by an arrangement which directly--but not excessively--interferes with that right. Thus, if absolutely controlling, the net effect of Requirement 4 would be to restrict the scope of bargaining in situations where the statutory right itself is not a bar to negotiations. A Government-wide regulation which essentially restates a management right under section 7106 should not constitute a greater bar to bargaining than the statutory right itself. Accordingly, in those circumstances where I find that a proposal is a negotiable appropriate arrangement because it does not excessively interfere with a statutory right, I will not find the proposal to be nonnegotiable because it conflicts with a regulatory restatement of that right.

As amply discussed in Member Frazier's separate opinion, and as noted above in my opinion, Requirement 4 was promulgated by OPM under authority delegated by the President in 1954. I agree with Member Frazier that the provision has a lengthy history independent of the Statute. However, I disagree with Member Frazier's conclusion that the historical roots of the provision are dispositive of the negotiability of the Union's proposal.

The portion of the FPM of which Requirement 4 is a part contains many rules and regulations governing the promotion and selection of Government employees. My opinion should not be read to find that all of these rules must yield to the obligation to bargain over appropriate arrangements for employees adversely affected by the exercise of management's right to select under section 7106. Rather, the sole focus of my opinion is the alleged conflict between the Union's proposal and portions of the provision: the reference in the provision to "management's right to select or not select from among a group of best qualified candidates," and "management's right to select from other appropriate sources(.)" These portions, which allegedly preclude bargaining, add nothing to management's right under section 7106. Accordingly, it is irrelevant to me whether the regulation or the Statute came first. The fact remains that an obligation to bargain under the Statute must, in my view, take precedence over an agency's regulatory obligation to observe its management right.

The Statute must be construed as a whole in order to effectuate the basic purpose for which it was enacted. American Federation of Government Employees, Local 2096 v. FLRA, 738 F.2d 633, 636 (4th Cir. 1984), Section 7106(a) of the Statute states that the management rights enumerated therein are "(s)ubject to subsection (b) of this section(.)" To find that the Agency's discretion under subchapter 1-5(c) may not be exercised through negotiations deprives section 7106(b)(3) of virtually all effect as it relates to the right to select when the employees involved are covered by the FPM. Since any proposal which interferes with management's right under section 7106(a)(2)(C) would also conflict with Requirement 41 that right would not be subject to appropriate arrangements negotiated under subsection (b)(3) when the employees are subject to the FPM.

Further, I do not believe that finding Proposal 2 to be nonnegotiable on the basis of a conflict with Requirement 4 is consistent with Congressional intent concerning appropriate arrangements, or is consistent with the congressional finding in section 7101 that collective bargaining is in the public interest. In AFGE v. FLRA, 702 F.2d at 1187, the Court of Appeals concluded the following about Congressional intent regarding section 7106(b)(3):

The conclusion is unavoidable that what was intended was an exception to the otherwise governing management prerogative requirements of subsection (a). . . . It also explains the broad limiting word "appropriate," which . . . permits the Authority to place needful limitations upon the sweep of the exception.

The court stated that it "would require legislative history of exceptional clarity to induce us to adopt an interpretation which . . . would deprive paragraph (b)(3) of virtually all effect." Id. There is no such legislative history in this case.

The Statute should be interpreted in a manner which affords maximum uniformity in rights and obligations for all Federal employees. This is particularly true in situations involving appropriate arrangements for employees who have been demoted or separated for no personal cause. It is also consistent with "standard labor-management provisions in the private sector, which curtail normal management hiring prerogatives with regard to employees who have been demoted(.)" AFGE v. FLRA, 702 F.2d at 1188 (Citations omitted).

Member Frazier notes that finding the Union's proposal to be negotiable would likely be viewed by these employees as "introducing some degree of fairness and justice into their unhappy situations." These situations, ones in which employees have been separated from the service through no fault of their own, involve the most substantial adverse effect that the exercise of any management right under section 7106 can have. The severity of these consequences leads me to conclude that negotiations over reemployment procedures should be available to the same extent to all Federal employees. It would be anomalous to find that they are not.

V. Conclusion

For the reasons set forth above, I find that Proposal 2 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

Issued, Washington, D.C., September 30, 1987

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY

Opinion of Member McKee on Proposal 2

I agree that Proposal 2 is negotiable for the reasons set forth by Chairman Calhoun in Sections II and IV of his separate opinion. As Chairman Calhoun fully discusses, section 7106 and Requirement 4 both pertain to management's right to make selections of employees. I believe that Congress clearly indicated that matters such as are contained in Proposal 2 were intended to be negotiable. Section 7106(b)(3) gives labor organizations the right to bargain concerning appropriate arrangements for employees adversely affected by the exercise of a management right to select employees. I will not permit a Government-wide regulation to limit negotiations on a matter Congress expressly intended to be negotiable. See, for example, Equal Employment Opportunity Commission v. Federal Labor Relations Authority, 744 F.2nd 842, 851 (D.C. Cir. 1984).

Furthermore, I do not believe that section 7117(a)(1) dictates a contrary result. The majority's construction of the Statute reads the Statute as a whole so as to give meaning to each part. To permit a Government-wide regulation to eliminate a labor organization's right to negotiate an appropriate arrangement pertaining to selection of employees effectively renders section 7106(b)(3) meaningless in such circumstances. I believe such a result should be avoided. Mountain States Telephone and Telegraph v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985). In addition, I believe the passage of the Statute, which was subsequent to the promulgation of Requirement 4, is a clear indication that Congress intended that the matters contained in Proposal 2 be within the duty to bargain.

Because I believe that Proposal 2 is negotiable pursuant to section 7106(a)(2)(C) and (b)(3), I specifically do not find it necessary to reach the issue of whether subchapter 1-5(c) of chapter 335 provides discretion for the agency to except the selection of reemployment eligibles from coverage of its merit promotion plan.

Accordingly, I find that Proposal 2 is within the duty to bargain.

Issued, Washington, D.C., September 30, 1987.

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

Member Frazier, Concurring in part and dissenting in part as to Proposal 2:

OPM asserted that Proposal 2 was nonnegotiable for two reasons: (1) it related to the rights and benefits of persons who are not "employees" of the agency, as that term is defined in 5 U.S.C. 7103(a)(2); and (2) it interfered with management's rights to select from any appropriate source, as guaranteed by 5 U.S.C. 7106(a)(2)(C).

This proposal would require the Agency to select reemployment eligibles separated through a reduction in force (RIF) for positions for which they qualify. Although the proposal does not expressly reserve to management the right to decide to fill a position, it is clear from the record that the Union intended this proposal to take effect after management determined to fill a vacancy. See Union Reply Brief at 19-20. Moreover, this requirement is implicit in the proposal. By requiring that a reemployment eligible be "selected" in preference to other applicants, the proposal logically only applies after management decides to fill a position.

This disputed proposal is, therefore, to the same effect as Proposals 7 and 8 in Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA No. 21, slip op. at 15-18 (1987). Proposals 7 and 8 in that case required the establishment of a reemployment priority list of employees separated because of a RIF. If the agency decided to fill positions and employees on the list were qualified, the proposal provided that management would offer these employees appropriate positions before seeking other applicants. The agency in that case argued, as the Agency does here, that the proposals directly determined a condition of employment for nonunit employees. The Authority found that the union sought to negotiate an arrangement for employees currently employed who might be separated through a RIF and that the proposals would not require the agency to offer employees positions outside the bargaining unit because of the reference to "appropriate" positions. In that case, the Authority concluded that the proposals did not excessively interfere with the agency's rights and were an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Similarly, the Union states here that the proposal is intended to benefit employees currently employed by the Agency who are subsequently separated through a RIF. Thus, I would reject the Agency's assertions based on the analysis in Congressional Research Service, and if no other consideration were involved, I would concur with the majority's conclusion that the proposal is negotiable as an appropriate arrangement pursuant to section 7106(b)(3) for employees adversely affected by a RIF.

However, there is a significant difference between the circumstances in this case and those in Congressional Research Service which requires me to dissent from the majority's conclusion. In Congressional Research Service, the bargaining unit employees were part of the Legislative branch (rather than the Executive branch) of the Federal Government and, therefore, selections were not governed by the Federal Personnel Manual (FPM). Congressional Research service, slip op. at 4 n.2. In this case, the employees involved are employees of the Executive branch and are subject to the FPM.

The majority's conclusion that the proposal is not barred from negotiation by FPM chapter 335, subchapter 1-4, Requirement 4 is based on two independent reasons. Chairman Calhoun and Member McKee agree that Proposal 2 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute and believe that it would be inconsistent with the Statute to find that the proposal conflicts with Requirement 4. Chairman Calhoun separately finds that the FPM provides discretion for the agency to except the selection of reemployment eligibles from the coverage of its merit promotion plan (i.e., discretion to except some actions from Requirement 4 of subchapter 1-4) which discretion may be exercised through negotiations. I dissent from their views on both counts and reach different conclusions as explained below.

I. Requirement 4 is a Government-wide Regulation which under section 7117(a)(1) bars the Negotiation of Inconsistent Proposals

Chairman Calhoun, with whom Member McKee separately concurs, holds that Requirement 4 constitutes a restatement of the statutory right to make selections under section 7106(a)(2)(C) of the Statute, which right is subject to section 7106(b)(3). However, they note that Requirement 4 does not provide that management's right to select may be limited by an arrangement which directly--but not excessively--interferes with the right and, as a result, does not reflect the limitations which section 7106(b)(3) places upon the statutory right. By referring to the right to select, Requirement 4 may not, the majority concludes, be construed as a greater bar to bargaining than the statutory right in section 7106(a)(2)(C).

If I could find a substantial basis for viewing Requirement 4 as nothing more than a restatement of the statutory right to make selections under section 7106(a)(2)(C) of the Statute and hence, in effect, a not too cleverly disguised attempt to issue regulations to implement the Statute and thereby to render nugatory the effect of 7106(b)(3), 9 I would agree with the majority. See, for example, American Federation of Government Employees, AFL - CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 16 FLRA 314 at 322 (1981) and American Federation of Government Employees, AFL - CIO, National Council of EEOC Locals and Equal Employment Opportunity Commission, 10 FLRA 3 at 4-5 (1982), enforced sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed per curiam, 106 S.Ct. 1678 (1986).

However, the conclusion that Requirement 4 is a Government-wide regulation which essentially restates a management right under section 7106 is apparently based solely on the wording of the Requirement; it certainly ignores the history of the Requirement.

Based upon that history, I conclude that Requirement 4 is not essentially a restatement of a management right under section 7106. Requirement 4 has a long history which antedates the Statute. Moreover, the statutory sources of that requirement are independent of section 7106 of the Statute. To briefly summarize that history, Requirement 4, in its present form was promulgated by the predecessor agency to the Office of Personnel Management (OPM), the Civil Service Commission, pursuant to directions by the President in Executive Order 10577, as amended. Executive Order 10577, which was issued by the President on November 22, 1954, and was effective on January 23, 1955, was issued presumably to carry out the authority vested in the President to prescribe civil Service Rules. See 5 U.S.C. 3301 and 3302. 10

Civil Service Rule 7.1 of E.O. 10577 provides:

in his discretion, an appointing officer may fill any position in the competitive service either by competitive appointment from a civil-service register or by non-competitive selection of a present or former Federal employee, in accordance with the Civil Service Regulations. He shall exercise his discretion in all personnel actions solely on the basis of merit and fitness and without regard to political or religious affiliations, marital status, or race.

Section 335.103 of part 335 of title 5, Code of Federal Regulations requires each agency to adopt and administer a program designed to insure systematic means of selection for promotion according to merit. To help ensure that the selection of employees for promotion is accomplished according to merit, the Office of Personnel Management has prescribed certain requirements for merit promotion programs, as had its predecessor agency, the Civil Service Commission. Thus, for example, as of December 31, 1973, 11 the Civil Service Commission had prescribed in FPM chapter 335 the following requirement:

Requirement 6. Each plan shall provide for management's right to select or nonselect. Each plan shall include a procedure for referring to the selecting official a reasonable number of the best qualified candidates identified by the competitive evaluation method of the plan (referral of fewer than three or more than five names for a vacancy may only be done in accordance with criteria specified in the plan).

On December 29, 1978, the Civil Service commission issued an FPM Letter 12 in which it announced the issuance of a revised FPM chapter 335 on merit promotion. In that revision the old Requirement 6 became Requirement 4 as we know it today. In 1981 chapter 335 of the FPM was republished by OPM to incorporate the 1978 changes. Thus, Requirement 4, which was promulgated on December 29, 1978, presently provides:

In view of the lengthy, independent history of Civil Service Rule 7.1 and its implementing Government-wide regulations, including that which currently is designated Requirement 4, I cannot agree with my colleagues that Requirement 4 merely constitutes a restatement of the statutory right to make selections under 7106(a)(2)(C) of the Statute. Instead, I think it is clear that Requirement 4 was a regulation issued pursuant to 5 U.S.C. 3301 and 3302 and Executive Order 10577, as amended, and constitutes a Government-wide regulation within the meaning of section 7117(a)(1).

In setting forth merit promotion requirements, Requirement 4 specifies, among other things, that management shall have the right to make selections for promotion from any appropriate source. I agree that this subject, the selection of employees for promotion from any appropriate source, also relates to management's right to select set forth in section 7106(a)(2)(C) of the Statute. I also agree with the majority that management's right to select established in section 7106(a)(2)(C) of the Statute (like all other management rights set forth in section 7106), does not preclude an agency from bargaining over appropriate arrangements for employees adversely affected by management's exercise of its right, so long as the arrangement does not excessively interfere with the management right involved pursuant to section 7106(b)(3). See generally National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), where the Authority adopted as a general rule the "excessive interference" test established by the D.C. Circuit in AFGE, Local 2782 v. FLRA, 702 F.2d 1183 (1983). However, I cannot agree with the majority that the limitations of section 7106(b)(3) apply to Requirement 4 or to any other Government-wide regulation. I find nothing in the Statute or its legislative history to indicate that Congress intended to limit the authority of the President and the Office of Personnel Management to prescribe rules to govern the civil service.

In circumstances similar to those in this case, we have ruled that a Government-wide regulation, promulgated by OPM under its independent authority to prescribe rules and regulations for the civil service, bars negotiation on a proposal which the Authority has determined should not be barred from negotiation by the management rights set forth in the Statute. 13 If indeed this result represents the sort of "anomaly" referred to by the majority, it is nevertheless a result that is compelled by the Statute. Subject matter that is otherwise "appropriate" for bargaining is always subject to the test of consistency with Government-wide regulations as provided in 5 U.S.C. 7117(a)(1). 14

Section 7117(a)(1) removes from the bargaining obligation proposals which are inconsistent with any Government-wide rule or regulation. 15 Under section 7117(a)(1) of the Statute the Authority's function is limited to determining solely whether the bargaining proposal is inconsistent with a Government-wide rule or regulation. If the proposal is inconsistent with such rule or regulation, then the proposal is not within the agency's bargaining obligation under the Statute, and is therefore nonnegotiable. Department of Defense v. FLRA, 685 F.2d 641, 644 (D.C. Cir. 1982).

It is section 7117, pot section 7106, which defines the scope of the duty to bargain. Section 7106 merely raises a bar to the negotiation of certain matters. Section 7106(b)(3) is only a limitation on section 7106's bar. It does not itself affirmatively mandate negotiations or limit the prescription of section 7117(a)(1) that proposals which are inconsistent with any Government-wide rule or regulation are nonnegotiable.

The legislative history of the Statute confirms the fact that Congress intended that Government-wide rules or regulations are to act as an absolute bar to negotiation over proposals inconsistent with these rules or regulations. The original bill passed by the House Committee had made the substance of Government-wide regulations negotiable if no compelling need for the regulation existed. 16 However, a substitute bill introduced by Congressman Udall, which passed the House and was in large part adopted by the House - Senate Conference Committee, 17 made Government-wide rules and regulations an "absolute bar to negotiations." 18 In describing what is now section 7117(a)(1) of the Statute, the House - Senate Conference Report stated that "(b)oth the House and Senate authorize negotiations except to the extent inconsistent with law, rules, and regulations . . . ." H.R. Conf. Rep. No. 1717, 95th Cong., 2d Sess. 158, reprinted in Legis. Hist. at 826.

By making Government-wide rules and regulations an "absolute bar to negotiations," Congress was unequivocal in its intent that the substance of Government-wide rules and regulations not be subject to negotiations; and that the Authority's role in negotiability disputes arising under section 7117(a)(1) of the Statute be limited solely to determining whether a bargaining proposal is inconsistent with such a rule or regulation. In cases such as this we must be concerned with means as much as ends. We must remain faithful to the statutory scheme enacted by the Congress including the limitations on the scope of bargaining and on the scope of our own authority as prescribed in the Statute.

Thus, both the plain language and the legislative history of the Statute refute the view of the majority opinion that a proposal which is deemed negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute may not be ruled nonnegotiable due to an inconsistency between the proposal and a Government-wide rule or regulation. That view mistakenly suggests that if section 7106(b)(3) removes the bar to negotiations raised in 7106(a)(2)(C), section 7106(b)(3) likewise removes the bar to negotiability raised in section 7117(a)(1). However, as already demonstrated, Congress intended in section 7117(a)(1) of the Statute to preclude negotiation over proposals inconsistent with any Government-wide rules or regulations, whatever the terms of these rules or regulations. By having such rules and regulations serve as an "absolute bar" to negotiations, Congress created a separate, independent and nondiscretionary preclusion of negotiability in the Federal sector apart from, for example, concerns expressed in section 7106(a) about preserving the nonnegotiability of certain management rights. If this result is anomalous it nonetheless is directed by the statutory scheme which Congress has established.

Unions may, of course, seek to influence the content of Government-wide rules or regulations by exercising their consultation rights under section 7117(d) of the Statute. But, notwithstanding the beliefs of some Members of the Authority or the courts that the effect of section 7117(a)(1) on the ability of the parties to negotiate appropriate arrangements under section 7106(b)(3) is anomalous, I think that is a matter which must be left to the legislative judgment of Congress under our constitutional system. 19

In these circumstances, it is for Congress, not the Authority, to reach the sweeping conclusion "that negotiations over reemployment procedures should be available to the same extent to all Federal employees." If Congress wished the Authority to make judgments in these cases based upon the "severity of . . . (the) consequences" involved, it clearly could have so written the Statute. Until it does, such subjective, legislative judgments are best left to Congress.

Having concluded that Requirement 4 is a Government-wide regulation to be accorded a position in the statutory scheme as set forth in section 7117(a)(1), I turn now to the second reason given by the Chairman for holding that negotiation of Proposal 2 is not barred by Requirement 4. I have set forth below my reasons for not subscribing to those views.

II. Interpretation of subchapters 1-4 and 1-5 of chapter 335 of the FPM

The Chairman separately concludes that subchapter 1-5(c) of chapter 335 provides discretion for the agency to except the selection of reemployment eligibles from the coverage of its merit promotion plan (i.e., discretion to except some actions from Requirement 4 of subchapter 1-4) which discretion may be exercised through negotiations. He further holds that this conclusion does not result in an inconsistency between subchapter 1-5(c) and Requirement 4. That may be an accurate reading of these Government-wide regulations. If so, it would render the proposal negotiable. Also, such a result would undoubtedly be viewed by reemployment eligibles as introducing some degree of fairness and justice into their unhappy situations. Nevertheless, I am not convinced that this is a fully supportable interpretation of subchapters 1-4 and 1-5 of chapter 335.

Chairman Calhoun cites the decision of the Court of Appeals for the D.C. Circuit in AFGE, Local 2782 v. FLRA, 803 F.2d 737 (D.C. Cir. 1986) in support of some of his reasoning. However, I am not persuaded that his interpretation and application of the Government-wide regulation herein is consistent with the most relevant portions of that decision by the Court of Appeals.

In that case the Court rejected a union contention that section 1-5 of FPM chapter 335 carves out a possible exception to Requirement 4 of section 1-4 finding instead that section 1-5 does not override the specific mandate of section 1-4, and especially Requirement 4 of that section. As the Court concluded:

Accordingly, we interpret subsection (c)(6) of section 1-5 as relating only to the application of competitive procedures to personnel actions, not as limiting the right under Requirement 4 of section 1-4. So construed, both sections 1-4 and 1-5 of chapter 335 essentially provide that repromotion eligibles may be selected without being on the list of "best qualified candidates" created as a result of competitive promotion procedures. Thus, the FPM would clearly permit management to select a "repromotion eligible" for promotion. It just as clearly, however, requires that management not be obligated to do so, as would be the case under AFGE's proposal. In consequence, the FPM, on the one hand, and AFGE's bargaining proposal, on the other, are inconsistent as the FLRA rightly concluded. (Emphasis added.) Id. at 741.

It is, of course, impossible to predict with complete certainty the decision of any adjudicatory body in a future case. Where, however, a court of appeals has recently established precedent in a specific area, one has a reasonable basis upon which to foresee the course of future decisions, recognizing that such bodies, following traditional principles of stare decisis, are loathe to depart from established precedent without ample reason.

Furthermore, in reaching his conclusions as to the proper interpretation of the Government-wide regulations involved, Chairman Calhoun has fashioned an interpretation which is novel and is clearly contrary to long-established precedent. It constitutes a significant departure from established Authority precedent which precedent is based, to a great extent, upon interpretations by the issuing agency of the Government-wide regulation involved; and his interpretation of this particular regulation is not based upon, and indeed departs from, the issuing agency's prior interpretation of its own regulation. 20

In these circumstances, before embarking upon the course charted by Chairman Calhoun I would, at the very least, request, pursuant to section 7105(i) of the Statute, an advisory opinion from the Director of the Office of Personnel Management concerning the proper interpretation of sections 1-4 and 1-5 of chapter 335 of the FPM. 21 Upon receipt of that opinion, I would seek from the Union its views concerning the OPM's opinion. In both instances I would request that OPM and the Union reconcile their views with those expressed by the Court of Appeals for the D.C. Circuit in AFGE Local 2782 v. FLRA. Additionally, in view of the fact that the agency which issued this Government-wide regulation is also a party in this case, I would ask both the Union and the Agency to address the question of whether OPM's interpretation of its own "Government-wide" regulation in matters concerning itself is consistent with that which applies to other agencies throughout the Government. A regulation which is found to be a Government-wide regulation will most likely have such wide application as to apply within the agency which issues it. That is no reason for the Authority to treat its application or its status under section 7117 any differently in a case involving the issuing agency than the Authority would in a case involving its application in some other agency-party to a case before us.

My suggested approach is consistent with the principled position taken by this very same union before the Court of Appeals in AFGE Local 2782 v. FLRA wherein it maintained that the "FLRA should have sought OPM's interpretation of the relevant FPM provisions instead of rendering its own construction of the Manual without the benefit of OPM's views." 22 In rejecting that particular union contention the Court pointed out that the matter of an OPM opinion was never raised before the Authority and hence was not properly before the Court. In that case the agency had contended before the Authority that the proposal in issue would conflict with Requirement 4 of subchapter 1-4, chapter 335 of the FPM and the union had full opportunity to respond to the agency's assertion, including an opportunity to ask the Authority to request an advisory opinion from OPM pursuant to section 7105(i).

In contrast, in the present case the agency made no such contention involving the FPM as to Proposal 2 and therefore the Union could not be expected to raise before the Authority the applicability of section 7105(i) in this connection. Since the Chairman has raised, sua sponte, the issue involving subchapters 1-4 and 1-5 of the FPM, at the very least we owe it to the parties and to the issuing agency of the Government-wide regulation involved to do precisely what AFGE advocated in AFGE Local 2782 v. FLRA, namely, to seek OPM's interpretation of the relevant FPM provisions.

I believe that it is especially appropriate to seek an advisory opinion under 7105(i) in these particular circumstances Where: (1) we are called upon to interpret and apply Government-wide regulations which have as their source another statute which assigns initial regulatory authority to the President; (2) the President has exercised that authority through the issuance of an Executive Order; and (3) the regulations in question have previously been interpreted by both the issuing agency and the Court of Appeals.

The Courts of Appeals have accorded precious little deference to the Authority's reading of statutes administered by other agencies or of Government-wide regulations issued pursuant to those statutes. Thus, the Court of Appeals for the Second Circuit has stated that "(n)o great deference is due an agency interpretation of another agency's statute." Veterans Admin. Med. Ctr. v. FLRA, 732 F.2d 1128, 1132 n.7 (2d Cir. 984).

The U.S. Court of Appeals for the D.C. Circuit has said that "FLRA's attempted reconciliation of the two statutes is not entitled to any deference. Its reconciliation involves interpreting a statutory provision not within its enabling statute--a provision not within its expertise. Hence, we need not defer to it." U.S. Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, 709 F.2d 724, 729 (fn. 21) (D.C. Cir. 1983). That Court has also said: "These cases . . . involved the Authority's interpretation of not only its own Act, but of another statute as well. Thus, the courts properly gave no deference to the Authority's interpretation of a statutory provision not within its enabling statute." Library of Congress v. FLRA, 699 F.2d 1280, 1286 n.29 (D.C. Cir. 1983).

The Court of Appeals for the Ninth Circuit has taken the same view:

The Authority has construed provisions not only of its own organic statute but also of the Technicians Act. Judicial deference need not attach to the Authority's interpretation of the Technicians Act, since the agencies with primary responsibility for administering and interpreting that particular act are, arguably, the Department of Defense and National Guard Bureau. See Whaley v. Shweiker, 663 F.2d 871, 873 (9th Cir. 1981) (no judicial deference need be given to the Secretary of Health and Human Services' interpretation of another agency's (Veterans Administration) statutes and regulations); Tsosie v. Califano, 651 F.2d 719, 722 (10th Cir. 1981) (the Secretary of Health, Education and Welfare's construction of regulations "is not entitled to special deference to the extent that it rests on the interpretation of another agency's statutes and regulations").

California National Guard v. FLRA, 697 F.2d 874, 879 (9th Cir. 1983). Accord Montana Air National Guard v. FLRA, 730 F.2d 577, 579 (9th Cir. 1984).

Likewise, the Court of Appeals for the Ninth Circuit has taken the same position with respect to the Authority's reading of regulations of another agency. Thus, in I.R.S. Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019, 1023 (9th Cir. 1983) that Court said:

In this case, however, the Authority has construed not only the Labor - Management Chapter, in the administration of which it is accorded expertise, but an EEOC regulation. The Authority's interpretation of the provisions involved here extends beyond its designated area of responsibility and ventures into discrimination in federal employment, a field Congress explicitly has delegated to the EEOC. 42 U.S.C. 2000e-16(b) (1976). While this court may give "considerable" weight to the Authority's interpretation of the Labor - Management Chapter, no such deference is owed to the Authority's reading of an EEOC regulation or to the Authority's resolution of the conflict between the statute and the EEOC regulation. New Jersey Air National Guard v. FLRA, 677 F.2d 276, 281-282 n.6 (3r Cir.), cert. denied, ___U.S.___, 103 S. Ct. 343, 74 L.Ed.2d 384 (1982); California National Guard v. FLRA, 697 F.2d 874, 879 (9th Cir. 1983). Therefore, we must independently decide the issue raised by the Authority's decision.

The Court of Appeals for the Eighth Circuit has defined its standard of review in such cases in the following terms:

The opinion of the FLRA regarding the scope of the National Guard Technicians Act is entitled to respect before this Court, but we are not bound by its construction of that statute even if reasonable.

State of Nebraska, Military Department, Office of the Adjutant General v. Federal Labor Relations Authority, 705 F.2d 9 5, 948 (8th Cir. 1983).

Thus, the courts clearly have given little, if any, deference (possibly a little respect) to the Authority's construction of statutes and regulations other than its own. 23

This is the very position which the Union in this case--AFGE--has taken in cases where the question has arisen as to the appropriate standard of review or deference a court should employ when objection is made to the Authority's reading of a statute other than its own. See, for example, AFGE, Local 2953 v. FLRA, 730 F.2d 1534, 1548 (D.C. Cir. 1984) wherein the court "expressed agreement with the union's position that the FLRA is entitled to no deference when interpreting a statutory provision not within its enabling statute."

While the courts, as I have noted, give little deference to the Authority's construction of the regulations of other agencies, courts generally do give deference to an agency's interpretation of its own regulations. See, for example, Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843-5 an cases cited in n.14 on p. 844 (1983). In particular, the Supreme Court stated in Chevron that where:

(C)ongress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Id. at 843.

Congress, in enacting Title II of the Civil Service Reform Act of 1978, stated its intention that:

The Office of Personnel Management is the arm of the President in matters of personnel administration. The Office will have central responsibility for adopting and administering civil service rules for the Executive branch. 24

Consequently, in keeping with Congress' intent that OPM should have the central responsibility for adopting and administering civil service rules and regulations and given the courts' deference to interpretations by agencies of their own regulations, I believe that the Authority should exercise its authority pursuant to section 7105(i) in this case. Congress clearly included this provision in the Statute as an invitation for the Authority to seek such advisory opinions from OPM, in particular, in cases precisely like the one before us.

In summary: given the President's and OPM's independent statutory authority to issue Government-wide rules and regulations governing the civil service; given the degree to which the Chairman's interpretation of the relevant OPM regulations departs from the decision of the D.C. Circuit in AFGE Local 2782 v. FLRA, from the previous interpretations of chapter 335 by the issuing agency, and from Authority precedent; given the Union's previously stated position that the Authority should seek OPM's interpretation of the relevant FPM provisions pursuant to section 7105(i) instead of rendering our own construction of the Manual without OPM's views; and given the Authority's failure in this case to seek an advisory opinion from OPM, especially in light of the very slight degree of deference which the courts have accorded the Authority's construction of statutes and regulations other than our own, I must respectfully dissent from the Chairman's interpretation of the relevant provisions of the FPM. I would seek first an advisory opinion from OPM on this question and proceed to seek the views of the Union concerning that advisory opinion before reaching any decision as to the proper interpretation of the OPM regulation involved. I would carefully consider the views of the parties on this matter and thereafter reach a conclusion concerning the meaning and application of the regulation in the case before us.

Issued, Washington, D.C., September 30, 1987.

Henry B. Frazier III, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 In finding Proposal 1 to be within the duty to bargain, we make no judgment as to its merits.

Footnote 2 American Federation of Government Employees, AFL-CIO, Local 3186 and Department of Health and Human Services, Office of Social Security Field Operations, Philadelphia Region, 23 FLRA No. 30 (1986) (Proposal 3); American Federation of State, County and Municipal Employees, Local 2830 and Department of Justice, 21 FLRA No. 121 (1986); National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, 21 FLRA No. 79 (1986); and American Federation of Government Employees, AFL-CIO, Local 2677 and Department of Health and Human Services, Office of Community Services, 21 FLRA No. 22 (1986), petition for review dismissed sub nom. American Federation of Government Employees, Local 2677 v. FLRA, 814 F.2d 774 (D.C. Cir. 1987).

Footnote 3 In finding the proposal to be within the duty to bargain, we make no judgment as to its merits.

Footnote 4 See the cases cited in footnote 1 in DECISION AND ORDER ON PROPOSAL 2 of this decision.

Footnote 5 See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986) (Provision 2); and Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA No. 21 (1987) (Proposals 7 and 8).

Footnote 6 In addition to promotions referenced in 5 C.F.R. 335.102, subchapter 1-5(a) provides that promotion plans apply to: (1) temporary promotions, (2) term promotions, (3) selections for details for more than 120 days to a higher graded position, (4) selection for certain types of training, (5) reassignment or demotion to a position having more promotion potential than the one previously held, (6) transfer to a higher grade position, and (7) reinstatement to a position at a higher grade.

Footnote 7 Promotion plans do not apply to: (1) a promotion resulting from the upgrading of a position without significant change in the duties, and (2) position changes permitted by RIF regulations.

Footnote 8 The other actions identified are: (1) career promotions, (2) career ladder promotions involving cooperative education students, (3) position changes from positions having known promotion potential to those having no higher potential, (4) temporary promotions of 120 days or less, and (5) consideration of a candidate not given proper consideration in a competitive action.

Footnote 9 The breadth of the Chairman's application of section 7106(b)(3) is somewhat surprising and indeed inconsistent with his specific recognition that section 7106(b)(3) is a limitation only upon other provisions of section 7106. That is, its effect is limited solely to section 7106 and does not extend to other independent provisions of the Statute.

Footnote 10 Sections 3301 and 3302 provide as follows: 3301. Civil service; generally The President may-- (1) prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service; (2) ascertain the fitness of applicants as to age, health, character, knowledge, and ability for the employment sought; and (3) appoint and prescribe the duties of individuals to make inquiries for the purpose of this section. 3302. Competitive service; rules The President may prescribe rules governing the competitive service. The rules shall provide, as nearly as conditions of good administration warrant, for-- (1) necessary exceptions of positions from the competitive service; and (2) necessary exceptions from the provisions of sections 2951, 3304(a), 3321, 7202, 7203, 7321, and 7322 of this title. Each officer and individual employed in an agency to which the rules apply shall aid in carrying out the rules.

Footnote 11 Inst. 205, December 31, 1973.

Footnote 12 FPM Letter 335-12, Subject: Revised Federal Merit Promotion Policy, December 29, 1978.

Footnote 13 American Federation of Government Employees, AFL-CIO, Local 3186 and Department of Health and Human Services, Office of Social Security Field Operations, Philadelphia Region, 23 FLRA No. 30 (1986) (Proposal 3); American Federation of State, County and Municipal Employees, Local 2830 and Department of Justice, 21 FLRA No. 121 (1986); National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, 21 FLRA No. 79 (1986); and American Federation of Government Employees, AFL-CIO, Local 2677 and Department of Health and Human Services, Office of Community Services, 21 FLRA No. 22 (1986), petition for review dismissed sub nom. American Federation of Government Employees, Local 2677 v. FLRA, 814 F.2d 774 (D.C. Cir. 1987) (mem.) (Court may not review issues never placed before the Authority).

Footnote 14 Section 7117(a)(1) states in pertinent part: Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation.

Footnote 15 See Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89,92 (1983); see also Department of the Treasury, U.S. Customs Service v. FLRA, 762 F.2d 1119, 1122 (D.C. Cir. 1985); Library of Congress v. FLRA, 699 F.2d 1280, 1284 n.16 (D.C. Cir. 1983).

Footnote 16 H.R. Rep. No. 1403, 95th Cong. 51 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute (Leqis. Hist.), at 697 (1979).

Footnote 17 H.R. Conf. Rep. No. 1717, 95th Cong. 2d Sess. 158 (1978), reprinted in Leqis. Hist. at 826.

Footnote 18 124 Cong. Rec. 29,184 (1978) (statement of Congressman Udall), reprinted in Legis. Hist. at 927.

Footnote 19 Chairman Calhoun also quotes the Court of Appeals for the District of Columbia to point out that the result is consistent with private sector labor-management relations practice. This very same Court of Appeals has answered any contention that cases in the Federal sector should be resolved on the basis of private sector precedent and practice: In Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983), which issued before the Supreme Court's BATF opinion, this court urged caution in the application of private sector labor law precedent to public sector labor cases, particularly in the area of collective bargaining: The scope of collective bargaining is far broader in the private sector, and the bargaining status of any given subject is determined by different statutory provisions and by different policy considerations. While these differences do not lead us to eschew completely the private sector model in defining the limits of negotiability in the public sector, we shall be careful to appreciate fully those distinctions between the private and public sectors that might necessitate a different legal analysis and conclusion. 699 F.2d at 1287 (citations omitted). While the FLRA may have been modeled after the NLRB, see National Treasury Employees Union v. FLRA, 810 F.2d 295, 299 (D.C. Cir. 1987), we are nevertheless called upon here to apply a statutory policy that is unique to the public sector; and while private sector law may provide useful "guidance" in certain instances, see, for example, id. at 299-300; Library of Congress, 699 F.2d at 1287, the Act itself must ultimately be interpreted in the context of its own language, history, and case law. National Treasury Employees Union v. FLRA, Nos. 85-1597 and 85-1681, slip op. at 16-17 (D.C. Cir. Aug. 18, 1987).

Footnote 20 See, for example, AFGE Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 6 FLRA 314, 317 (1981); National Federation of Federal Employees, Local 29, and United States Army Corps of Engineers, Kansas City District Kansas City, Missouri, 21 FLRA No. 79 (1986); and the other cases cited in footnote 1 of the majority decision (slip opinion at 12).

Footnote 21 As pertinent here, section 7105(i) of the Statute provides: In the exercise of the functions of the Authority under this title, the Authority may request from the Director of the Office of Personnel Management an advisory opinion concerning the proper interpretation of rules, regulations, or policy directives issued by the Office of Personnel Management in connection with any matter before the Authority. See, for example, American Federation of Government Employees, AFL-CIO, Local 3231 and Department of Health and Human Service, Social Security Administration, 25 FLRA No. 45 (1987) (where the Authority solicited OPM's views before it dismissed the Union's petition for review).

Footnote 22 AFGE, Local 2782 v. FLRA, 803 F.2d 737, 742 (D.C. Cir. 1986).

Footnote 23 See also, Division of Mil. & Naval Affairs v. FLRA, 683 F.2d 45 (2d Cir. 1982), cert. den. sub nom. FLRA v. Div. of Mil. & Naval Affairs, 464 U.S. 1007 (1983); N.J. Air Nat. Guard. FLRA, 677 F.2d 276 (3d Cir.), cert. denied sub nom. AFGE, Local 3486 v. N. J. Air Nat. Guard, 177th Fighter Interceptor Group, 459 U.S. 988 (1982). In a recent decision the Court of Appeals for the D.C. circuit has offered a glimmer of hope for those who toil at independent adjudicatory agencies that some degree of deference may be accorded their interpretations of regulations drafted by other agencies. In U.S. v. Paddack, No. 86-5371 (D.C. Cir. Aug. 7, 1987), Judge Silberman, joined by the Chief Judge, in a most enlightening and enlightened decision, deferred to an interpretation by the Foreign Service Grievance Board of travel regulations issued by the State Department. It remains to be seen whether Judge Silberman's brethren will be equally inclined to defer to independent adjudicatory agencies in similar cases where the interpretation is otherwise not arbitrary and capricious or, as some have suggested, will accord such deference only where they agree with the interpretation of the regulations involved. At any rate it should be observed that Judge Silberman did add a note of caution which seems appropriate in the case before us: namely, that the Court of Appeals has "deferred to a drafting agency rather than to an independent adjudicatory body when the two disagree over the interpretation of a regulation."

Footnote 24 S. Rep. No. 969, 95th Cong.,2d Sess. 24 (1978), reprinted in 1978 U.S. Code Cong. & Admin. News 2723, 2746.

FLRA.gov

29:0380(40)NG - AFGE, LOCAL 32 VS OPM

DECISION AND ORDER ON NEGOTIABILITY ISSUES

DECISION AND ORDER ON PROPOSAL 2

FOOTNOTES

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29:0380(40)NG - AFGE, LOCAL 32 VS OPM