No. 98-70912
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________________________
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 147,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
SOCIAL SECURITY ADMINISTRATION, SANTA ROSA
DISTRICT OFFICE, SANTA ROSA, CALIFORNIA,
Intervenor
_______________________________
ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
ANN M. BOEHM
Attorney
Federal Labor Relations
Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 2
I. Nature of the Case 2
II. Background 4
A. The Federal Service Labor-Management Relations
Statute and Executive Order No. 12871 4
1. The Statute 4
2. Executive Order No. 12871 6
STATEMENT OF THE FACTS 7
I. Factual Background 7
II. The Authority's Decision 8
III. The Commerce II decision 9
A. The language of Section 2(d) 9
B. The purpose of the Executive Order 10
C. The impact of Section 3 of the Executive Order 11
D. Office of Personnel Management Guidance 13
E. Giving meaning to the Executive Order 14
STANDARD OF REVIEW 14
SUMMARY OF ARGUMENT 15
ARGUMENT 18
THE AUTHORITY PROPERLY DETERMINED THAT THE AGENCY'S REFUSAL
TO NEGOTIATE OVER A 5 U.S.C. § 7106(b)(1) MATTER WAS NOT AN
UNFAIR LABOR PRACTICE BECAUSE SECTION 2(d) OF EXECUTIVE
ORDER NO. 12871 DOES NOT CONSTITUTE A STATUTORY "ELECTION"
TO BARGAIN UNDER 5 U.S.C. § 7106(b)(1) 18
A. The plain language of the Executive Order
indicates that it was not intended to create
an enforceable "election" to bargain under
section 7106(b)(1) of the Statute 20
B. The purpose and intent of the Executive Order
demonstrate that Section 2(d) should not be
construed as making an "election" to bargain
under section 7106(b)(1) of the Statute 23
C. Executive Order Section 3 confirms that
Section 2(d) is not an "election" to bargain
under section 7106(b)(1) of the Statute 25
CONCLUSION 30
CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT
RULE 32(E)(14), FORM OF BRIEF 31
ADDENDUM
Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135
(1994 & Supp. II 1996) A-1
TABLE OF AUTHORITIES
AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 14
AFGE, Local 2987 v. FLRA, 775 F.2d 1022 (9th Cir. 1985) 15
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983) 4, 15
California Nat'l Guard v. FLRA, 697 F.2d 874
(9th Cir. 1983) 4, 5
Chen v. Carroll, 866 F. Supp. 283 (E.D. Va. 1994) 21
Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995) 28
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984) 15, 19
Department of the Treasury v. FLRA, 837 F.2d 1163
(D.C. Cir. 1988) 15
Department of Veterans Med. Ctr. v. FLRA, 16 F.3d 1526
(9th Cir. 1994) 15
John Hancock Mut. Life Ins. Co. v. Harris Trust & Savings
Bank, 510 U.S. 86 (1993) 23
Old Dominion Branch No. 496, National Association of Letter
Carriers v. Austin, 418 U.S. 264 (1974) 22, 28
Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769
(D.C. Cir. 1988) 15
South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498
(1986) 12, 27
Utley v. Varian Assoc., Inc., 811 F.2d 1279
(9th Cir. 1987) 23, 27, 28
West Point Elementary Sch. Teachers Assn v. FLRA,
855 F.2d 936 (2d Cir. 1988) 15
Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995) 28
U.S. Dep't of Interior, Bur. of Indian Affs. v. FLRA,
887 F.2d 172 (9th Cir. 1989) 4
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
National Association of Government Employees, Local R5-184
and U.S. Department of Veterans Affairs, Medical Center,
Lexington, Kentucky, 51 FLRA 386 (1995) 6
American Federation of State, County, and Municipal
Employees, Local 3097 and U.S. Department of Justice,
Justice Management Division, 42 FLRA 412 (1991) 27
U.S. Department of Commerce, Patent and Trademark Office,
53 FLRA (No. 70) 858 (Nov. 17, 1997) 3, 6, 18, 19
U.S. Department of Commerce, Patent and Trademark Office,
54 FLRA (No. 43) 360 (June 19, 1998), petition for
review filed, Patent Office Profissional Assoc. v.
FLRA, No. 98-1377 (D.C. Cir. Aug. 17, 1998) passim
FEDERAL STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) 1
5 U.S.C. § 7103(a)(12) 5
5 U.S.C. § 7103(a)(14) 5
5 U.S.C. § 7105(a)(1) 4
5 U.S.C. § 7105(a)(2) 4
5 U.S.C. § 7105(a)(2)(G) 1
5 U.S.C. § 7105(a)(2)(I) 4
5 U.S.C. § 7106(a) 5, 6, 8
5 U.S.C. § 7106(a)(1) 5
5 U.S.C. § 7106(a)(2)(A) 5
5 U.S.C. § 7106(a)(2)(B) 6
5 U.S.C. § 7106(b) 8
5 U.S.C. § 7106(b)(1) passim
5 U.S.C. § 7106(b)(2) 7
5 U.S.C. § 7106(b)(3) 7
5 U.S.C. § 7114(b)(2) 5
5 U.S.C. § 7114(b)(5) 5
5 U.S.C. § 7116(a)(1) 2, 5, 7
5 U.S.C. § 7116(a)(5) 2, 5, 7
5 U.S.C. § 7117(a) 5
5 U.S.C. § 7117(a)(1) 27
5 U.S.C. § 7119 5
5 U.S.C. § 7123 26
5 U.S.C. § 7123(a) 1, 2
5 U.S.C. § 7123(c) 14, 19
5 U.S.C. § 706(2)(A) 15, 20
Executive Order No. 11491 § 4, 3 C.F.R. (1969 Comp.) at 191,
reprinted in 5 U.S.C. § 7101 note (1994) 22
Executive Order No. 12564, 3 C.F.R. (1986 Comp.) at 224,
reprinted in 5 U.S.C. § 7301 note (1994) 27
Executive Order No. 12871, 3 C.F.R. (1993 Comp.) at 655,
reprinted in 5 U.S.C. § 7101 note (1994) passim
§ 2(d) passim
§ 3 passim
Executive Order No. 12983, 60 Fed. Reg. 66,855 (1995) 29
MISCELLANEOUS
Clinton Order to Agency Heads Not Enforceable by FLRA,
Panel Rules, Government Employee Relations Report,
Vol. 36, No. 1770, at 725 (June 29, 1998) 26
Office of Personnel Management's December 16, 1993
Guidance 13, 19
Sutherland Statutory Construction § 31.06
(5th ed. Supp. 1998) 11, 23
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 98-70912
_______________________________
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 147,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
SOCIAL SECURITY ADMINISTRATION, SANTA ROSA
DISTRICT OFFICE, SANTA ROSA, CALIFORNIA,
Intervenor
_______________________________
ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The decision and order under review in this case was issued by the Federal
Labor Relations Authority ("FLRA" or "Authority") in Social Security
Administration, Santa Rosa District Office, Santa Rosa, California, 54 FLRA
(No. 45) 444 (June 19, 1998); Record Excerpts (RE) 4. The Authority
exercised jurisdiction over the case pursuant to section 7105(a)(2)(G) of
the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§
7101-7135 (1994 & Supp. II 1996) (Statute).[1]
This Court has jurisdiction to review the Authority's final decisions and
orders pursuant to section 7123(a) of the Statute. Petitioner American
Federation of Government Employees, AFL-CIO, Council 147 ("AFGE" or
"petitioner" or "the union") filed a petition for review within the 60-day
time limit provided by section 7123(a) of the Statute.
STATEMENT OF THE ISSUE
Whether the Authority properly determined that the agency's refusal to
negotiate over a 5 U.S.C. § 7106(b)(1) matter was not an unfair labor
practice because Section 2(d) of Executive Order No. 12871 does not
constitute a statutory "election" to bargain under 5 U.S.C. § 7106(b)(1).
STATEMENT OF THE CASE
I. Nature of the Case
This case arose as an unfair labor practice (ULP) proceeding concerning
allegations that the refusal by the Social Security Administration, Santa
Rosa District Office, Santa Rosa, California ("SSA" or the "agency") to
bargain over its decision to move a bargaining unit employee violated
section 7116(a)(1) and (5) of the Statute. 54 FLRA at 445-46; RE 5-6.
Specifically, the ULP complaint alleged that Executive Order No. 12871[2]
constituted an "election," on behalf of the agency, to negotiate over
matters within section 7106(b)(1) of the Statute,[3] and because moving an
employee is such a matter, the agency was obligated to bargain before making
such a decision. 54 FLRA at 446; RE 6.
The Authority, basing its conclusion on the reasoning set forth in U.S.
Department of Commerce, Patent and Trademark Office, 54 FLRA (No. 43) 360
(June 19, 1998), petition for review filed, Patent Office Professional
Assoc. v. FLRA, No. 98-1377 (D.C. Cir. Aug. 17, 1998) (Commerce II); RE
B1,[4] found that the agency did not commit a ULP. 54 FLRA at 448-49; RE
8-9. Although it confirmed that the employee's move was a section 7106(b)
(1) matter subject to negotiation "at the election of the agency," the
Authority determined that Executive Order No. 12871 is an Executive Branch
internal management direction and not an "election" to bargain under section
7106(b)(1). Id. Therefore, the agency was not required by the Statute to
bargain with the union over the decision to move the employee. 54 FLRA at
449; RE 9.
II. Background
A. The Federal Service Labor-Management Relations Statute and Executive
Order No. 12871
1. The Statute
The Statute governs labor-management relations in the federal service.
Under the Statute, the responsibilities of the Authority include
adjudicating unfair labor practice complaints, negotiability disputes,
bargaining unit and representation election matters, and resolving
exceptions to arbitration awards. See 5 U.S.C. § 7105(a)(1), (2); see also
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 93 (1983)
(BATF). The Authority thus ensures compliance with the statutory rights and
obligations of federal employees, labor organizations that represent such
federal employees, and federal agencies. The Authority is further empowered
to take such actions as are necessary and appropriate to effectively
administer the Statute's provisions. See 5 U.S.C. § 7105(a)(2)(I); BATF,
464 U.S. at 92-93; U.S. Dep't of Interior, Bur. of Indian Affs. v. FLRA, 887
F.2d 172, 173 (9th Cir. 1989).
The Authority performs a role analogous to that of the National Labor
Relations Board (NLRB) in the private sector. See BATF, 464 U.S. at 92-93.
Congress intended the Authority, like the NLRB, "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 [Statute]." BATF, 464
U.S. at 97. See California Nat'l Guard v. FLRA, 697 F.2d 874, 876 (9th Cir.
1983) (Calif. Guard).
Under the Statute, an agency must bargain in good faith with the exclusive
representative of an appropriate bargaining unit about unit employees'
conditions of employment, and upon the request of either party, execute a
document embodying the agreed upon terms. See 5 U.S.C. §§ 7103(a)(12),
7114(b)(2), 7114(b)(5). The Statute defines "conditions of employment" as
"personnel policies, practices, and matters, whether established by rule,
regulation, or otherwise, affecting working conditions." 5 U.S.C. § 7103(a)
(14). If good faith negotiations result in an impasse, the impasse may be
referred to the Federal Service Impasses Panel for resolution. See 5 U.S.C.
§ 7119. The Statute further provides that it is a ULP for a federal agency
employer to, among other things, "interfere with, restrain, or coerce any
employee in the exercise by the employee of any right under [the Statute],"
or to refuse to "negotiate in good faith." 5 U.S.C. § 7116(a)(1) and (5).
There is no duty to bargain, however, over proposed contract language that
would bring about an inconsistency with a federal law, government-wide rule
or regulation, or an agency regulation for which a "compelling need" exists.
5 U.S.C. § 7117(a); see California Guard, 697 F.2d at 879. There also is no
duty to bargain over proposed contract language regarding the management
rights set forth in section 7106(a) of the Statute. 5 U.S.C. § 7106(a).
Examples of these rights include the right to determine the mission of the
agency, 5 U.S.C. § 7106(a)(1); the right to hire, 5 U.S.C. § 7106(a)(2)(A);
the right to assign work, 5 U.S.C. § 7106(a)(2)(B); and the right to
"determine the personnel by which agency operations shall be conducted," id.
The instant case involves 5 U.S.C. § 7106(b)(1), which is recognized as an
exception to the management rights set forth in section 7106(a). See
Commerce II, 54 FLRA at 374; RE B15; see also National Association of
Government Employees, Local R5-184 and U.S. Department of Veterans Affairs,
Medical Center, Lexington, Kentucky, 51 FLRA 386, 393 (1995). Matters
arising under section 7106(b)(1)--"the numbers, types, and grades of
employees or positions assigned to any organizational subdivision," 5 U.S.C.
§ 7106(b)(1)--are recognized as "permissive" subjects of bargaining.
Commerce I, 53 FLRA at 870. "[A]n agency may elect to, but absent an
election is not required to, bargain about section 7106(b)(1) subjects."
Id.
2. Executive Order No. 12871
In 1993, President Clinton issued Executive Order No. 12871. The Executive
Order provides, inter alia, that "[t]he head of each agency subject to the
provisions of [the Statute] . . . shall . . . negotiate over the subjects
set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do
the same . . . ." Executive Order No. 12871 § 2(d); RE B49-50. The
Executive Order further provides that the Order "is intended only to improve
the internal management of the executive branch and is not intended to, and
does not, create any right to administrative or judicial review." Id. § 3;
RE B50. The impact of Section 2(d) of the Executive Order on section
7106(b)(1), and the enforceability of the Order through the ULP provision of
the Statute, are at issue in this case.
STATEMENT OF THE FACTS
I. Factual Background
At the employee's request, the agency moved a bargaining unit employee from
one work unit of the Santa Rosa District Office to another. 54 FLRA at 445;
RE 5. The work of the two units differed in some minor respects, but the
similarities were such that the move had no effect on the employee's job
title, tour of duty, shift, work area, or work equipment. Id.
Prior to the move, the union president requested that the decision to move
the employee be subject to negotiation based upon section 7106(b)(1) and
Executive Order No. 12871. 54 FLRA at 445-46; RE 5-6. The agency agreed to
bargain over the impact and implementation of the decision to move the
employee, pursuant to section 7106(b)(2) and (3) of the Statute, but the
union declined to make any proposals in that area. The agency determined
not to bargain over the actual decision to move the employee--the section
7106(b)(1) matter. 54 FLRA at 446; RE 6.
The FLRA's General Counsel issued a ULP complaint alleging that the
President, through Executive Order No. 12871, exercised the agency's
discretion to negotiate under section 7106(b)(1) and, therefore, the agency
was obligated to bargain. As a result, the General Counsel contended that
the agency violated section 7116(a)(1) and (5) by refusing to bargain over
the decision to move the unit employee from one work unit to another. Id.
The Administrative Law Judge (ALJ) confirmed that the decision to move the
employee was a section 7106(b)(1) matter, and thus it was within the
agency's discretion to decide whether to negotiate with the union. The ALJ
then concluded that the agency did not elect to negotiate with the union.
Id. In so finding, the ALJ determined that the President did not exercise
the agency's discretion to elect to bargain through the issuance of
Executive Order No. 12871. 54 FLRA at 446-67; RE 6-7. The ALJ therefore
recommended that the Authority dismiss the ULP complaint. 54 FLRA at 447;
RE 7.
II. The Authority's Decision
The Authority agreed with the ALJ that the complaint should be dismissed.
54 FLRA at 449; RE 9. As relevant here, the Authority viewed its decision
to that effect as "governed" by its holding in Commerce II that Section 2(d)
of Executive Order No. 12871 does not constitute an "election" to negotiate
under section 7106(b)(1).[5] 54 FLRA at 448; RE 8.
As found in Commerce II and discussed in more detail below, the Authority
concluded that Section 2(d) "'unambiguously states [that it is] a
direction,'" not a statutory "election", "'by the President to agency
officials to engage in bargaining over [the] subjects defined in the
Statute.'" Id. (quoting Commerce II, 54 FLRA at 387). The Authority
further held that construing Section 2(d) as an "internal management
direction" is also necessitated by Section 3's language barring judicial and
administrative review of the Executive Order. Id. According to the
Authority, "[t]he fact that the nature of the Executive Order's direction is
indeed mandatory does not . . . render it a statutory election enforceable
in an unfair labor practice proceeding." 54 FLRA at 448-49; RE 8-9. Based
upon this analysis, the Authority held that the agency was not required to
bargain with the union in this case and therefore dismissed the
complaint.[6] 54 FLRA at 449; RE 9.
III. The Commerce II Decision
As indicated above, in the instant case the Authority relied upon Commerce
II's holding regarding the impact of Executive Order No. 12871 on section
7106(b)(1) of the Statute. In Commerce II, the Authority concluded that the
President's direction to agencies to negotiate over matters within section
7106(b)(1) does not constitute an "election" by the agency that is
enforceable in a ULP proceeding. 54 FLRA at 362; RE B3. The Authority
reached this decision based upon five discrete considerations, set forth
below. Id.
A. The language of Section 2(d)
The Authority began with an analysis of the precise wording of Section 2(d).
54 FLRA at 376; RE B17. The Authority noted that all parties agreed that
the sole source of the asserted "election" under section 7106(b)(1) is
Section 2(d) of the Executive Order. Id. Section 2(d) is one of five
subsections in which the Executive Order directs particular actions that the
head of each agency "shall" take. Id.
Relying upon basic definitions of the word "shall," the Authority determined
that use of the word makes the direction to the head of the agency
mandatory. Id. A mandatory direction, however, does not equate to the
President's making an enforceable "election" under section 7106(b)(1). 54
FLRA at 377; RE B18. Thus, reading Section 2(d) to be a "direction to
agencies enforceable not only by the President as chief executive, but also
by a prosecutor through adjudicatory proceedings before the Authority,
appealable to and ultimately enforceable by the Federal courts" would
require the "words in Section 2(d) [to] have a meaning beyond their plain
terms." Id. Noting that "[n]ot every order from a superior to a
subordinate amounts to a requirement that is enforceable by administrative
agencies and/or the courts," the Authority concluded that "Section 2(d) can
be mandatory in nature without constituting a [s]tatutory election that is
enforceable in [ULP] proceedings." 54 FLRA at 378; RE B19.
B. The purpose of the Executive Order
Second, the Authority considered the overall purpose of Executive Order No.
12871 and concluded on this basis as well that Section 2(d) "should be
construed in accordance with its terms," and not "translated into a
statutory election." 54 FLRA at 378-79; RE 19-20. Analysis of overall
purpose, for an Executive Order just as with a statute, is appropriate in
determining the meaning of a specific provision. 54 FLRA at 379; RE B20
(citing Sutherland Statutory Construction § 31.06 (5th ed. Supp. 1998)
(Sutherland)).
Based upon its review of the Executive Order as a whole, the Authority
concluded that the Executive Order's "express purpose . . . is to facilitate
the formation of labor-management partnerships in order to implement the
Government reform objectives of the National Performance Review." Id. The
Authority found this purpose to be confirmed by Sections 1 and 2 of the
Order. Id.
Section 1 expressly confirms this purpose, as it creates the National
Partnership Council, an entity "charged with, among other things,
'supporting the creation of labor-management partnerships and promoting
partnership efforts.'" Id. With regard to Section 2, the Authority noted
that the section's five directions to agency heads regarding actions to be
taken deal with matters "outside the framework of legal rights and
obligations defined in the Statute." 54 FLRA at 380; RE B21. Thus, the
Authority reasoned, "the context in which the command in Section 2(d)
appears does not indicate that it is intended to effect an action under the
Statute." Id.
C. The impact of Section 3 of the Executive Order
Third, the Authority reviewed the language of Section 2(d) in light of
Section 3 of the Executive Order, which provides:
This order is intended only to improve the internal management of the executive
branch and is not intended to, and does not, create any right to administrative
or judicial review, or any other right, substantive or procedural, enforceable
by a party against the United States, its agencies or instrumentalities, its
officers or employees, or any other person.
Executive Order No. 12871 § 3; RE B50. Particularly persuasive to the Authority
was the statement in Section 3 that the Order is "'intended only to improve the
internal management of the executive branch.'" Commerce II, 54 FLRA at 380; RE
B21. This statement of intent, read together with Section 3's express bar on
administrative or judicial review, convinced the Authority that its
interpretation of Section 2(d) as an exclusively internal management direction
was correct. 54 FLRA at 381; RE B22.
The Authority concluded that if it construed Section 2(d) as an "election"
under section 7106(b)(1), it would then be enforceable by the Authority and
subject to judicial review. 54 FLRA at 380; RE B21. According to the
Authority, such construction would "ignore[] Section 3 entirely" and render
it "nugatory with respect to Section 2(d)." 54 FLRA at 381; RE B22. This,
in the Authority's view, ran counter to the canon of statutory construction
that provides, "'a statute should be interpreted so as not to render one
part inoperative.'" 54 FLRA at 382; RE B23 (quoting South Carolina v.
Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 (1986)) (South Carolina).
The Authority accordingly found that Section 3 "compels the conclusion" that
"Section 2(d) cannot be construed as an election that is reviewable and
enforceable under the Statute." 54 FLRA at 381-82; RE B22-23.
D. Office of Personnel Management Guidance
The Authority's fourth area of analysis centered on the parties' arguments
regarding the impact of the Office of Personnel Management's (OPM) December
16, 1993 Guidance (Guidance) to agencies regarding Executive Order No.
12871.[7] The Authority noted initially that "[t]here is no basis in the
record to view OPM's issuance as evidencing the President's intent in the
Executive Order." 54 FLRA at 382; RE B23. As a result, the Authority did
not rely on the Guidance as a parallel to statutory legislative history.
Id.
However, the Authority noted that even if it viewed the Guidance as evidence
of the President's intent, it was not "persuaded that it establishes that
Section 2(d) constitutes an election." 54 FLRA at 383; RE B24. Although
the Guidance states that bargaining over subjects within section 7106(b)(1)
is "mandatory," this language suggests only that failure to negotiate in
that manner violates the Executive Order and not the Statute. 54 FLRA at
384; RE B25.
Also, the Authority found that other statements in the Guidance suggest that
"OPM does not view the Executive Order as taking an action that is
enforceable in unfair labor practice proceedings." 54 FLRA at 385; RE B26.
Specifically, the Authority noted that the Guidance's direction that parties
engage in "interest-based bargaining" prescribes how the mandated bargaining
is to be conducted and goes beyond the Statute. Id. Thus, OPM's Guidance
interprets the Executive Order as requiring more than the Statute requires
without suggesting that these additional requirements are enforceable in ULP
proceedings. Id.
E. Giving meaning to the Executive Order
Finally, the Authority disagreed with arguments suggesting that failure to
enforce the purported section 7106(b)(1) "election" would "render[] the
Executive Order 'meaningless.'" Id. As the Authority stated, "[w]e
question the underlying premise that a President's directive to his agency
heads in general, or the direction in Section 2(d) in particular, can only
be meaningful if it can be enforced in administrative and judicial
proceedings." 54 FLRA at 385-86; RE B26-27.
The Authority also reviewed responses to surveys conducted of labor and
management that indicated issues considered non-negotiable in the past were
being considered and negotiated. 54 FLRA at 386; RE B27. Thus, the
Authority found "considerable basis for viewing the Executive Order as,
indeed, meaningful even in the absence of statutory enforcement of the
bargaining direction in Section 2(d)." 54 FLRA at 387; RE B28.
STANDARD OF REVIEW
The standard of review of Authority decisions is "narrow." AFGE, Local 2343
v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998). Authority action shall be set
aside only if "arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law." 5 U.S.C. § 7123(c), incorporating 5 U.S.C. §
706(2)(A); Department of Veterans Med. Ctr. v. FLRA, 16 F.3d 1526, 1529 (9th
Cir. 1994); Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769, 771-72 (D.C.
Cir. 1988). Under this standard, unless it appears from the Statute or its
legislative history that the Authority's construction of its enabling act is
not one that Congress would have sanctioned, the Authority's construction
should be upheld. See Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 844 (1984) (Chevron). A court should defer to
the Authority's construction as long as it is reasonable. See id. at 845.
Further, as the Supreme Court has stated, the Authority is entitled to
"considerable deference" when it exercises its "'special function of
applying the general provisions of the [Statute] to the complexities' of
federal labor relations." BATF, 464 U.S. at 97 (citation omitted); see also
AFGE, Local 2987 v. FLRA, 775 F.2d 1022, 1025 (9th Cir. 1985). As the
instant case demonstrates, among the "complexities of Federal labor
relations" that the Authority must address as part of its everyday work is
the interrelationship of the Statute and other laws, rules, and regulations
governing the federal employment relationship. West Point Elementary Sch.
Teachers Ass'n v. FLRA, 855 F.2d 936, 940 (2d Cir. 1988); Department of the
Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988).
SUMMARY OF ARGUMENT
The Authority properly determined that the agency did not commit a ULP when
it refused to bargain over its decision to move a bargaining unit employee.
Although the decision to move the employee is a matter covered by section
7106(b)(1) of the Authority's Statute, the Authority correctly ruled that
Section 2(d) of Executive Order No. 12871 does not constitute an enforceable
"election" to negotiate about such matters under section 7106(b)(1). The
Authority's interpretation of its own Statute is supported by the overall
language and purpose of the Executive Order and, as petitioner acknowledges,
is entitled to deference.
Regarding the impact of Executive Order No. 12871 on the Statute, the plain
language of Section 2(d) indicates that it was not intended to constitute an
"election" to negotiate under section 7106(b)(1). There is no legal
requirement that directions from a superior to a subordinate, such as the
Executive Order's direction from the President to agencies to bargain over
matters covered by section 7106(b)(1), are necessarily administratively or
judicially enforceable. Accordingly, it would be erroneous to infer from
Section 2(d)'s mandatory character that it equates to an "election" under
section 7106(b)(1) to negotiate that is enforceable under the Statute's ULP
procedures.
The express purpose of the Executive Order--facilitation of labor-management
partnerships--further supports the Authority's conclusion that Section 2(d)
should not be construed as an "election" under section 7106(b)(1). The
creation and implementation of labor-management partnerships, to which
virtually the entire Executive Order is directed, are matters not addressed
by the Statute. Because the Executive Order's overall orientation is toward
matters not covered by the Statute, it was reasonable for the Authority to
conclude that Section 2(d) was similarly directed, and was not intended to
effect an enforceable "election" to negotiate under section 7106(b)(1).
Finally, Section 3 of the Executive Order confirms that Section 2(d) is not
an enforceable section 7106(b)(1) "election" to bargain. Section 3
expressly states that the Executive Order was issued "only" to improve the
internal management of the Executive Branch. Moreover, Section 3
specifically denies any intent to create any right to administrative or
judicial review, or any other enforceable right. A finding that Section
2(d) is an enforceable "election" would flout this clear language of Section
3. In contrast, the Authority's interpretation of Section 2(d) in light of
Section 3 comports not only with the language of Section 3, but also with
established principles of statutory construction that caution against
interpretations of executive orders that would render one part inoperative,
as well as with case law regarding private rights of action under executive
orders.
Because the Authority's determination in this case is reasonable and
correct, the petition for review should be denied.
ARGUMENT
THE AUTHORITY PROPERLY DETERMINED THAT THE AGENCY'S REFUSAL TO NEGOTIATE OVER A
5 U.S.C. § 7106(b)(1) MATTER WAS NOT AN UNFAIR LABOR PRACTICE BECAUSE SECTION
2(d) OF EXECUTIVE ORDER NO. 12871 DOES NOT CONSTITUTE A STATUTORY "ELECTION" TO
BARGAIN UNDER 5 U.S.C. § 7106(b)(1)
The Authority correctly analyzed the impact of the Executive Order's Section
2(d) on the Statute's section 7106(b)(1), and reasonably determined that
Section 2(d)'s direction to agency management did not constitute an
enforceable "election" under the Statute such that the agency had committed
a ULP. The Authority issued its decision against a background of well-
established Authority precedent. According to that precedent, matters
covered by section 7106(b)(1) of the Statute are considered "permissive"
subjects of bargaining. See Commerce I, 53 FLRA at 870. Authority
precedent also "clearly states that an agency that elects to bargain over
section 7106(b)(1) matters may withdraw from bargaining at any time before
reaching agreement." Id. at 871. As a result of this ability to withdraw,
"the Authority has not previously found that an agency acted unlawfully in
refusing to bargain over a section 7106(b)(1) subject." Id. Accordingly,
although the Authority has found that once agreement has been reached on a
section 7106(b)(1) matter, the agreement is enforceable, see id. at 873, it
has also held that "an agency official who elects to bargain with a union
about permissive subjects but later withdraws that election prior to
reaching agreement does not commit an unfair labor practice," id. at 874.[8]
As petitioner acknowledges, this case "involves a pure question of statutory
construction," (Pet. Brief at 20), and the Authority's view is therefore
entitled to deference. See Chevron, 467 U.S. at 844. Petitioner has not
demonstrated how the Authority's interpretation of the Statute is in any way
"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law."[9] See 5 U.S.C. § 7123(c), incorporating 5 U.S.C. §
706(2)(A). As a result, and as set forth below, the petition for review
should be denied.
A. The plain language of the Executive Order indicates that it was not
intended to create an enforceable "election" to bargain under section 7106(b)
(1) of the Statute
As the Authority held in Commerce II, nothing in the "precise words" of
Section 2(d), "or elsewhere in the Executive Order, expressly states that
the President is making an 'election under the Statute.'" 54 FLRA at 377;
RE B18. Thus, the assertion that Section 2(d) creates an enforceable
"election" to bargain--or as petitioner suggests, that the agency is "duty-
bound to bargain," Pet. Brief at 32--seeks to give the words in Section 2(d)
"a meaning beyond their plain terms." 54 FLRA at 377; RE B18.
The fact that, as the parties agree, Section 2(d) constitutes a mandatory
direction from the President to the agencies to bargain on section 7106(b)
(1) matters is not to the contrary.[10] As the Authority reasoned, 54 FLRA
at 378; RE B19, there is no legal requirement that necessarily makes an
order from a superior to a subordinate administratively or judicially
enforceable. Cf., e.g., Chen v. Carroll, 866 F. Supp. 283, 287 (E.D. Va.
1994) (finding that an executive order direction that the Attorney General
and Secretary of State "'provide for' enhanced consideration" of certain
individuals in immigration situations, was not equivalent to a legally
enforceable "requirement that such enhanced consideration be given"). Yet
this is precisely the position advanced by petitioner. Petitioner in effect
seeks to "translate the verb 'shall' [in Section 2(d)] into such an
election, making the direction to agencies enforceable not only by the
President as chief executive, but also by a prosecutor through adjudicatory
proceedings before the Authority, appealable to and ultimately enforceable
by the Federal courts." 54 FLRA at 377; RE B18. Such an interpretation
finds no support in principles of statutory construction or case law, and
should be rejected.
Equally unsupportable is petitioner's argument that the Authority's
rationale in this regard leads to the "absurd result" that complying
agencies are "subject to the coverage of the Statute," while noncomplying
agencies "evade statutory coverage." Pet. Brief at 33-34. First,
regardless of whether an agency complies with Executive Order No. 12871, it
remains subject to the provisions and mandates of the Statute. Second,
because of the mandatory direction in Section 2(d), a noncomplying,
insubordinate agency is nevertheless accountable to the President. As the
Authority noted in Commerce II, "[w]e question the underlying premise that a
President's directive to his agency heads in general, or the direction in
Section 2(d) in particular, can only be meaningful if it can be enforced in
administrative and judicial proceedings." 54 FLRA at 385-86; RE 26-27.
Petitioner also errs in asserting that because of the acknowledged mandatory
nature of Section 2(d), this Executive Order should be enforceable in the
same manner as was Executive Order No. 11491. Pet. Brief at 29 (citing Old
Dominion Branch No. 496, National Association of Letter Carriers v. Austin,
418 U.S. 264 (1973) (Old Dominion)). Old Dominion is inapposite. That case
addressed the President's authority to issue an Executive Order regarding
the operation of the Executive Branch. Old Dominion, 418 U.S. at 273 n.5.
There is no issue in the instant case concerning the President's authority
to issue Executive Order No. 12871. Rather, this case deals with the impact
of the Executive Order on the operation of section 7106(b)(1) of the
Statute. Furthermore, Executive Order No. 11491 contained explicit remedial
provisions for any violations of its mandates. See, e.g., Executive Order
No. 11491 § 4, 3 C.F.R. (1969 Comp.) at 191, reprinted in 5 U.S.C. § 7101
note (1994) (authorizing the Federal Labor Relations Council to adjudicate
ULP cases under the Order). Executive Order No. 12871, in contrast, lacks
such express remedial provisions, and, as discussed infra pp. 24-27
regarding Section 3 of the Order, prohibits any administrative or judicial
remedies. See Executive Order No. 12871 § 3; RE B50.
B. The purpose and intent of the Executive Order demonstrate that Section 2(d)
should not be construed as making an "election" to bargain under section 7106(b)
(1) of the Statute
Analyzing the Executive Order according to accepted principles of statutory
construction, the Authority also correctly determined that the overall
purpose of the Executive Order supports the conclusion that Section 2(d) was
not intended to serve as a statutory "election" to negotiate under section
7106(b)(1).[11] See, e.g., John Hancock Mut. Life Ins. Co. v. Harris Trust
& Sav. Bank, 510 U.S. 86, 94-95 (1993) (In interpreting a statute, the Court
"look[s] to the provisions of the whole law, and to its object and
policy."). The Executive Order's express purpose is to "facilitate the
formation of labor- management partnerships in order to implement the
Government reform objectives of the National Performance Review." Commerce
II, 54 FLRA at 379; RE B20. This purpose "sheds . . . light on how Section
2(d) should be construed." Id.
Both Sections 1 and 2 support the Authority's finding that the focus of the
Executive Order is limited to the creation and promotion of labor-management
partnerships. Section 1, establishing the National Partnership Council,
clearly has this purpose. See id. Similarly, regarding Section 2, the five
actions agency heads are directed to take therein, including the direction
to negotiate over section 7106(b)(1) matters, were expressly included to
effectuate the implementation of labor-management partnerships, as the title
of that section indicates. See 54 FLRA at 380; RE B21.
The Authority's determination that Section 2(d) was not intended as an
"election" under section 7106(b)(1) of the Statute is consistent with the
predominant character of the Executive Order, discussed above. The creation
and implementation of labor-management partnerships, to which virtually the
entire Executive Order is directed, are matters that the Statute does not
address. These matters are, as the Authority discussed, "outside the
framework of legal rights and obligations defined in the Statute." Id.
Because the undeniable orientation of the Executive Order is toward matters
not covered by the Statute, it is reasonable to conclude that Section 2(d)
has a similar focus, and was not intended to "effect an action under the
Statute." Id. Thus, both the plain language and the purpose of the
Executive Order support the Authority's conclusion in this case.
C. Executive Order Section 3 confirms that Section 2(d) is not an "election" to
bargain under section 7106(b)(1) of the Statute
The plain language of Section 3 of the Executive Order supports the
Authority's decision in this case. The Authority's interpretation of
Section 3 of the Executive Order is consistent with the manner in which such
executive orders have been interpreted in the past, and with precedent in
this and other circuits concluding that such orders do not establish a
private right of action. Moreover, the Authority's interpretation comports
with the discretionary nature of such Presidential directives. Thus, the
Authority properly interpreted the Executive Order and its effect under
section 7106(b)(1) of the Authority's Statute.
Section 3 demonstrates conclusively that Section 2(d) does not constitute an
"election" enforceable under section 7106(b)(1). The very first sentence of
Section 3 expresses the Executive Order's limited scope. According to
Section 3, the Executive Order was issued "only to improve the internal
management of the executive branch." Executive Order No. 12871 § 3
(emphasis added); RE B50.
The second clause of Section 3's first sentence underscores the Executive
Order's intent not to create enforceable rights where none previously
existed. Section 3 states in this regard that it "is not intended to, and
does not, create any right to administrative or judicial review, or any
other right . . . enforceable by a party." Id. This express statement in
the Executive Order refutes petitioner's argument that, with the advent of
the Executive Order, unions now have new rights, and agencies new
obligations, enforceable through the Statute's ULP procedures administered
by the FLRA and enforced by the Courts under 5 U.S.C. § 7123.
To ensure the accuracy of its interpretation of Section 3's language, the
Authority analyzed alternative constructions of Section 2(d) and their
relationship to this language of Section 3. Commerce II, 54 FLRA at 381; RE
B22. As the Authority observed, construing Section 2(d) as an internal
management directive allows the agency to elect to negotiate without
offending the language of Section 3. Id. Construing Section 2(d) as an
enforceable "election" to negotiate, however, "ignores Section 3 entirely
and, indeed, renders it nugatory with respect to Section 2(d)." Id.[12]
The Authority's interpretation of the Executive Order with respect to the
"election" provisions of section 7106(b)(1) accords with established
principles of statutory construction. It is inappropriate to interpret an
executive order in a manner that would "'render one part inoperative,'" as
would occur with the latter construction above. Commerce II, 54 FLRA at
382; RE B23 (quoting South Carolina, 476 U.S. at 510 n. 22 (1985)).[13]
Further support for the Authority's interpretation of the impact of Section
3 on its ultimate conclusion regarding Section 2(d) is found in case law
regarding private rights of action under executive orders. In Utley, for
example, this Court examined an executive order to determine whether the
order created a private right of action. 811 F.2d at 1285-86. In
concluding that the executive order did not create such a right, the Court
relied upon the "'elemental canon of statutory construction that where a
statute expressly provides a particular remedy or remedies, a court must be
chary of reading others into it.'" Id. at 1285 (citation omitted).
In the instant case, Section 3 of the Executive Order clearly provides that
there is to be no private right of action. As in Utley, this Court "must be
chary of reading other [remedies]," such as enforceability of Section 2(d)
through the Statute, "into it." Id.; see also Zhang v. Slattery, 55 F.3d
732, 748 (2d Cir. 1995) (observing that nothing in the executive order there
at issue "indicated that the order was anything other than a directive
issued to one of [the] cabinet officers," and despite the noncompliance by
the Attorney General, concluding that "it is not the role of the federal
courts to administer the executive branch"); Chen Zhou Chai v. Carroll, 48
F.3d 1331, 1339 (4th Cir. 1995) ("A court should not enforce an executive
order intended for the internal management of the President's cabinet.").
Finally, the very nature of an executive order--the President has broad
discretion to issue such orders, see Old Dominion, 418 U.S. at 273 n.5--
supports the Authority's determination in this case. Petitioner, arguing
that the Executive Order effects a statutory "election", notes that "[i]f
the President does not desire the effects of a [s]ection 7106(b)(1) election
that is Government-wide, his option is to rescind the election that has been
made." Pet. Brief at 42. Given the Authority's interpretation of the
Executive Order, such Presidential action is unnecessary. On the other
hand, if the Authority's interpretation of the Order were at odds with the
President's desires, he could have, during the five months since the
Authority's decisions issued, clarified or amended this order to reflect his
intent.[14]
In sum, the overall language and intent of the Executive Order supports the
Authority's conclusion that Section 2(d) is not an enforceable "election"
under section 7106(b)(1). As this ultimate determination by the Authority
is an interpretation of its own organic Statute, it is entitled to
deference. Petitioner concedes that it is the Authority's responsibility to
determine whether Presidential directives implicate the Statute. Pet. Brief
at 38. The Authority has reasonably concluded that Executive Order No.
12871 does not effect an "election" under the Statute. Thus, the Court
should deny the petition for review in this case.
CONCLUSION
The petition for review should be denied.
Respectfully submitted,
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
ANN M. BOEHM
Attorney
Federal Labor Relations
Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
December 1998
CERTIFICATION PURSUANT TO FRAP RULE 32
AND CIRCUIT RULE 32(e)(4),
FORM OF BRIEF
Pursuant to Federal Rule of Appellate Procedure 32 and Ninth Circuit Rule
32(e)(4), I certify that the attached brief is monospaced, has 10.5 or less
characters per inch, and contains 7,287 words.
December 2, 1998
___________________________
Ann M. Boehm
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________________________
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 147, AFL-CIO,
Petitioner
v. No. 98-70912
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
SOCIAL SECURITY ADMINISTRATION,
SANTA ROSA DISTRICT OFFICE, SANTA
ROSA, CALIFORNIA,
Intervenor
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Brief For The Federal Labor Relations
Authority, have been served this day, by mail, upon
the following:
Mark D. Roth Kevin M. Grile
General Counsel Assistant General Counsel
Charles A. Hobbie American Federation of
Deputy General Counsel Government Employees,
American Federation of AFL-CIO
Government Employees, 449 North Clark St., Room 300
AFL-CIO Chicago, Illinois 60610
80 F Street, N.W.
Washington, D.C. 20001
William Kanter
Alfred Mollin
Attorneys
Appellate Staff, Civil Division
601 D Street, N.W., Room 9554
Department of Justice
Washington, D.C. 20530-0001
Thelma Brown
Paralegal Specialist
December 2, 1998
STATUTORY ADDENDUM
TABLE OF CONTENTS
1. 5 U.S.C. § 7103(a)(12), (14)............................ A-1
2. 5 U.S.C. § 7105(a)(1), (2).............................. A-2
3. 5 U.S.C. § 7105(a)(2)(G),(I)............................ A-2
4. 5 U.S.C. § 7106(a)(1), (2).............................. A-3
5. 5 U.S.C. § 7106(b)...................................... A-3
6. 5 U.S.C. § 7114(b)...................................... A-4
7. 5 U.S.C. § 7116(a)(1), (5).............................. A-5
8. 5 U.S.C. § 7117(a)(1)................................... A-6
9. 5 U.S.C. § 7119......................................... A-7
9. 5 U.S.C. § 7123(a), (c)................................. A-8
§ 7103. Definitions; application
(a) For the purpose of this chapter-
* * * * * * * * * *
(12) "collective bargaining" means the performance of the mutual obligation
of the representative of an agency and the exclusive representative of
employees in an appropriate unit in the agency to meet at reasonable times
and to consult and bargain in a good-faith effort to reach agreement with
respect to the conditions of employment affecting such employees and to
execute, if requested by either party, a written document incorporating any
collective bargaining agreement reached, but the obligation referred to in
this paragraph does not compel either party to agree to a proposal or to
make a concession;
* * * * * * * * * *
(14) "conditions of employment" means personnel policies, practices, and
matters, whether established by rule, regulation, or otherwise, affecting
working conditions, except that such term does not include policies,
practices, and matters-
(A) relating to political activities prohibited under subchapter III of
chapter 73 of this title;
(B) relating to the classification of any position; or
(C) to the extent such matters are specifically provided for by Federal
statute;
* * * * * * * * * *
§ 7105. Powers and duties of the Authority
(a)(1) The Authority shall provide leadership in establishing policies and
guidance relating to matters under this chapter, and, except as otherwise
provided, shall be responsible for carrying out the purpose of this chapter.
(2) The Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-
* * * * * * * * * *
(G) conduct hearings and resolve complaints of unfair labor practices under
section 7118 of this title;
* * * * * * * * * *
(I) take such other actions as are necessary and appropriate to effectively
administer the provisions of this chapter.
* * * * * * * * * *
§ 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this chapter shall
affect the authority of any management official of any agency-
(1) to determine the mission, budget, organization, number of employees, and
internal security practices of the agency; and
(2) in accordance with applicable laws-
(A) to hire, assign, direct, layoff, and retain employees in the agency, or
to suspend, remove, reduce in grade or pay, or take other disciplinary
action against such employees;
(B) to assign work, to make determinations with respect to contracting out,
and to determine the personnel by which agency operations shall be
conducted;
* * * * * * * * * *
(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating-
(1) at the election of the agency, on the numbers, types, and grades of
employees or positions assigned to any organizational subdivision, work
project, or tour of duty, or on the technology, methods, and means of
performing work;
(2) procedures which management officials of the agency will observe in
exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the
exercise of any authority under this section by such management officials.
§ 7114. Representation rights and duties
* * * * * * * * * *
(b) The duty of an agency and an exclusive representative to negotiate in
good faith under subsection (a) of this section shall include the
obligation-
* * * * * * * * * *
(2) to be represented at the negotiations by duly authorized representatives
prepared to discuss and negotiate on any condition of employment;
* * * * * * * * * *
(5) if agreement is reached, to execute on the request of any party to the
negotiation a written document embodying the agreed terms, and to take such
steps as are necessary to implement such agreement.
* * * * * * * * * *
§ 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor practice
for an agency-
(1) to interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under this chapter;
* * * * * * * * * *
(5) to refuse to consult or negotiate in good faith with a labor
organization as required by this chapter;
* * * * * * * * * *
§ 7117. Duty to bargain in good faith; compelling need; duty to consult
(a)(1) 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.
* * * * * * * * * *
§ 7119. Negotiation impasses; Federal Service Impasses Panel
(a) The Federal Mediation and Conciliation Service shall provide services
and assistance to agencies and exclusive representatives in the resolution
of negotiation impasses. The Service shall determine under what
circumstances and in what matter it shall provide services and assistance.
(b) If voluntary arrangements, including the services of the Federal
Mediation and Conciliation Service or any other third-party mediation, fail
to resolve a negotiation impasse-
(1) either party may request the Federal Service Impasses Panel to consider
the matter, or
(2) the parties may agree to adopt a procedure for binding arbitration of
the negotiation impasses, but only if the procedure is approved by the
Panel.
(c)(1) The Federal Service Impasses Panel is an entity within the Authority,
the function of which is to provide assistance in resolving negotiation
impasses between agencies and exclusive representatives.
(2) The Panel shall be composed of a Chairman and at least six other
members, who shall be appointed by the President, solely on the basis of
fitness to perform duties and functions involved, from among individuals who
are familiar with Government operations and knowledgeable in labor-
management relations.
(3) Of the original members of the Panel, 2 members shall be appointed for a
term of 1 year, 2 members shall be appointed for a term of 3 years, and the
Chairman and the remaining members shall be appointed for a term of 5 years.
Thereafter each member shall be appointed for a term of 5 years, except that
an individual chosen to fill a vacancy shall be appointed for the unexpired
term of the member replaced. Any member of the Panel may be removed by the
President.
(4) The Panel may appoint an Executive Director and any other individuals it
may from time to time find necessary for the proper performance of its
duties. Each member of the Panel who is not an employee (as defined in
section 2105 of this title) is entitled to pay at a rate equal to the daily
equivalent of the maximum annual rate of basic pay then currently paid under
the General Schedule for each day he is engaged in the performance of
official business of the Panel, including travel time, and is entitled to
travel expenses as provided under section 5703 of this title.
(5)(A) The Panel or its designee shall promptly investigate any impasse
presented to it under subsection (b) of this section. The Panel shall
consider the impasse and shall either-
(i) recommend to the parties procedures for the resolution of the impasse;
or
(ii) assist the parties in resolving the impasse through whatever methods
and procedures, including factfinding and recommendations, it may consider
appropriate to accomplish the purpose of this section.
(B) If the parties do not arrive at a settlement after assistance by the
Panel under subparagraph (A) of this paragraph, the Panel may-
(i) hold hearings;
(ii) administer oaths, take the testimony or deposition of any person under
oath, and issue subpenas as provided in section 7132 of this title; and
(iii) take whatever action is necessary and not inconsistent with this
chapter to resolve the impasse.
(C) Notice of any final action of the Panel under this section shall be
promptly served upon the parties, and the action shall be binding on such
parties during the term of the agreement, unless the parties agree
otherwise.
§ 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the Authority other than an
order under-
(1) section 7122 of this title (involving an award by an arbitrator), unless
the order involves an unfair labor practice under section 7118 of this
title, or
(2) section 7112 of this title (involving an appropriate unit
determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in the
United States court of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals for the District of
Columbia.
* * * * * * * * * *
(c) Upon the filing of a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for enforcement, the
Authority shall file in the court the record in the proceedings, as provided
in section 2112 of title 28. Upon the filing of the petition, the court
shall cause notice thereof to be served to the parties involved, and
thereupon shall have jurisdiction of the proceeding and of the question
determined therein and may grant any temporary relief (including a temporary
restraining order) it considers just and proper, and may make and enter a
decree affirming and enforcing, modifying and enforcing as so modified, or
setting aside in whole or in part the order of the Authority. The filing of
a petition under subsection (a) or (b) of this section shall not operate as
a stay of the Authority's order unless the court specifically orders the
stay. Review of the Authority's order shall be on the record in accordance
with section 706 of this title. No objection that has not been urged before
the Authority, or its designee, shall be considered by the court, unless the
failure or neglect to urge the objection is excused because of extraordinary
circumstances. The findings of the Authority with respect to questions of
fact, if supported by substantial evidence on the record considered as a
whole, shall be conclusive. If any person applies to the court for leave to
adduce additional evidence and shows to the satisfaction of the court that
the additional evidence is material and that there were reasonable grounds
for the failure to adduce the evidence in the hearing before the Authority,
or its designee, the court may order the additional evidence to be taken
before the Authority, or its designee, and to be made a part of the record.
The Authority may modify its findings as to the facts, or make new findings
by reason of additional evidence so taken and filed. The Authority shall
file its modified or new findings, which, with respect to questions of fact,
if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any,
for the modification or setting aside of its original order. Upon the filing
of the record with the court, the jurisdiction of the court shall be
exclusive and its judgment and decree shall be final, except that the
judgment and decree shall be subject to review by the Supreme Court of the
United States upon writ of certiorari or certification as provided in
section 1254 of title 28.
* * * * * * * * * *
[1] Pertinent statutory provisions are set forth in Addendum A to this
brief.
[2] Executive Order No. 12871, 3 C.F.R. (1993 Comp.) at 655, reprinted in 5
U.S.C. § 7101 note (1994), is set forth at RE B47-50.
[3] Section 7106(b)(1) provides, in relevant part, that "[n]othing in this
section shall preclude any agency and any labor organization from negotiating at
the election of the agency, on the numbers, types, and grades or positions
assigned to any organizational subdivision, work project, or tour of duty . . .
." 5 U.S.C. § 7106(b)(1) (emphasis added).
[4] Before issuing its Commerce II decision, the Authority issued a partial
decision and order in U.S. Department of Commerce, Patent and Trademark Office,
53 FLRA (No. 70) 858 (Nov. 17, 1997) (Commerce I) directing the parties in that
case and in four other cases--the instant case being one of those four--as well
as amicus curiae, to submit written responses to questions regarding the
relationship between Executive Order No. 12871 and section 7106(b)(1).
[5] The Authority also relied upon the Commerce II affirmation of Authority
precedent holding that section 7106(b) of the Statute is an exception to the
section 7106(a) management rights provision. 54 FLRA at 448; RE 8. This
determination is relevant because the employee's move is a section 7106(b)(1)
matter. Id. Neither the Authority's conclusion regarding the interrelationship
between section 7106(b) and section 7106(a), nor the conclusion that the
employee's move is a section 7106(b)(1) matter is challenged in this proceeding.
In fact, petitioner concedes these points as areas on which both petitioner and
the Authority agree. See Petitioner's Brief (Pet. Brief) at 20-27. Because
there is no challenge to these determinations, the Authority will not address
these matters herein.
[6] Member Wasserman dissented in the instant case, 54 FLRA at 450; RE 10,
and in Commerce II, 54 FLRA at 392; RE B33.
[7] The relevant portions of the Guidance provide that "'bargaining over the
subjects set forth in 5 U.S.C. § 7106(b)(1) is now mandatory,'" and that in the
event of an impasse on a section 7106(b)(1) matter, either party could present
the impasse to the Federal Service Impasses Panel or an interest arbitrator for
resolution. Commerce II, 54 FLRA at 383-84; RE B24-25.
[8] Petitioner's claim (Pet. Brief at 26-27, 32-33) that the Authority has on
numerous occasions enforced elections to bargain under section 7106(b)(1)
ignores the crucial distinction between the enforceability of contract
provisions reflecting management elections to negotiate and the obligation to
negotiate prospectively on section 7106(b)(1) matters. Although the Authority
has enforced post-agreement elections to negotiate over section 7106(b)(1)
matters (see cases cited in Pet. Brief at 32), it has not prospectively required
an agency to bargain over a section 7106(b)(1) matter.
[9] Petitioner directly challenges only three of the five considerations
relied upon by the Authority in making its Commerce II determination that
governs its holding in the instant case. Petitioner does not in any manner
challenge the Authority's findings regarding whether statutory enforcement is
necessary to give the Executive Order meaning (54 FLRA at 385-87; RE B26-28),
and, at most, only indirectly challenges the Authority's findings regarding the
OPM Guidance, by relying upon the Guidance as authority for its arguments
regarding the mandatory nature of the direction to bargain under section 7106(b)
(1), (Pet. Brief at 30).
Petitioner's reliance on the OPM Guidance to support its position is
misplaced. First, the Authority explained that there is no basis in the
record to view the Guidance as "evidencing the President's intent in the
Executive Order." 54 FLRA at 382; RE B23. Second, the Authority stated
that even if the Guidance were evidence of the President's intent, it does
not establish that Section 2(d) "constitutes an election." 54 FLRA at 383;
RE B24. Finally, and as noted by the Authority, OPM filed a brief with the
Authority in Commerce II stating that the Executive Order is an "'internal
directive'" and does not itself "'constitute the election it mandates.'"
Id. n.24.
[10] Petitioner incorrectly asserts that the parties agree that Section
2(d)'s order to agencies to bargain over section 7106(b)(1) matters is "legally
binding." Pet. Brief at 30-31. The manner in which Section 2(d) is binding is
precisely what is at issue in this case.
[11] As this Court has recognized, principles of statutory construction are
appropriate to apply in interpreting executive orders. See Utley v. Varian
Assoc., Inc., 811 F.2d 1279, 1285 (9th Cir. 1987) (Utley). See also Sutherland
§ 31.06 ("The same rules of construction that are used for statutes and
administrative regulations are used to interpret an executive order.").
[12] The determination that the Executive Order is an internal management
directive not appropriately enforceable by the Authority through ULP proceedings
is consistent with the public statements of the national president of the
American Federation of Government Employees, petitioner herein. In an article
regarding the Authority's decision in Commerce II, the national president stated
"it was not up to [the] FLRA to 'decide whether agency heads appointed by the
President of the United States should follow [his] orders. Only President
Clinton can enforce his promises--and he must.'" Clinton Order to Agency Heads
Not Enforceable by FLRA, Panel Rules, Government Employee Relations Report
(BNA), Vol. 36, No. 1770, at 725 (June 29, 1998).
[13] Petitioner, however, contends that the Authority's interpretation of the
Executive Order is erroneous. Specifically, by referring to Authority case law
regarding Executive Order No. 12564--Drug-Free Federal Workplace, petitioner
asserts that the Authority's interpretation of Executive Order No. 12871 is
inconsistent with its prior interpretation of an executive order. Pet. Brief at
38-40. This argument fails because the Authority's interpretation of Executive
Order No. 12564 focused on whether it constituted a "law" under 5 U.S.C. §
7117(a)(1), see, e.g., American Federation of State, County, and Municipal
Employees, Local 3097 and U.S. Department of Justice, Justice Management
Division, 42 FLRA 412, 421 (1991), and not whether its language constituted an
"election" under section 7106(b)(1). Furthermore, Executive Order No. 12564
does not contain the nonenforceability language found in Section 3 of Executive
Order No. 12871. See Executive Order No. 12564, 3 C.F.R. (1986 Comp.) at 224,
reprinted in 5 U.S.C. § 7301 note (1994).
[14] In fact, President Clinton has previously amended Executive Order No.
12871. See Executive Order No. 12983, 60 Fed. Reg. 66,855 (1995); RE B50-51.
