Equal Employment Opportunity Commission v. Federal Labor Relations Authority, American Federation of Government Employees, Afl-Cio, Etc., Intervenor

TAMM, Before WRIGHT and Circuit Judges, MacKINNON, Senior Circuit Judge.

Opinion for the court filed Circuit Judge TAMM.

Dissenting opinion filed Senior Circuit Judge MacKINNON.

TAMM, Judge: Circuit appeal This is an from a decision of the (the Federal Labor Authority Relations Au- thority) ordering petitioner Equal Employ- Opportunity (EEOC) Commission bargain over a union contract sively laws defined in the Act as compliance “personnel requires regarding “contracting- matters, regulations policies, practices, and whether es- duty rule, it has no contends that regulation, otherwise, out.” EEOC tablished proposal concerns bargain because the affecting working conditions.” 5 U.S.C. manage- subject exclusively reserved to 7103(a)(14). cross-petitioned ment. duty bargain This broad For the reasons stated for enforcement. certain Specifically, limitations. the Act

below, Authority’s we enforce the order. management rights contains clause that prerogatives reserves certain Background I. § 7106(a). important, ment. 5 U.S.C. Most Statutory A. Framework case, Title VII of the Civil Service Reform Act clause reserves to the author- §§ (the Act), of 1978 5 U.S.C. 7101-7135 ity “to make determinations with (1982), substantially labor-manage- revised contracting 7106(a)(2)(B). out.” 5 U.S.C. federal sector. The ment relations procedures exercising The used in these designed right to Act was balance management rights subject reserved are to employees engage to in concerted federal § 7106(b).1 negotiation. 5 U.S.C. activity managers with the need of federal B. The Facts an “effective and efficient to achieve [fed- The facts in case are undisput § 7101(b). 5 U.S.C. Government.” eral] During negotiations ed. contract with the administer the Act and establish labor- To EEOC, following the union2 advanced the management policy, relations cre- proposal: the Federal Labor Relations Authori- ated agrees comply “The EMPLOYER to with Authority’s responsibilities ty. The include applicable OMB Circular A-76 and other resolving relating duty issues to the regulations concerning laws and con- bargain. tracting-out.” system The Act established a of collec- (J.A.) Appendix Joint at 2. requires agen- tive that federal EEOC declared proposal nonnegotiable employee bargain cies and unions to and refused to bargain good respect dispute, faith “with over it. To resolve the ... conditions § 7103(a)(12). The employment.” petition union filed a for review with the employment” expan- “conditions of Authority. term J.A. at l.4 ees, AFL-CIO, provides part: pertinent 1. Section 7X06 National Council of EEOC Lo- (a) (b) section, Subject cals. to subsection of this chapter in this shall affect the author- ity management any agen- official of (the Circular) prescribes 3. OMB Circular A-76 cy— guidelines determining goods whether the government and services needed the federal in accordance with laws— acquired private should be from the sector or government obtained "in-house" with facilities work, (B) assign to make determinations (J.A.) personnel. Appendix Joint at 37. out, respect contracting and to deter- specifies government gen- The Circular personnel by agency opera- mine the erally acquire goods should and services conducted; tions shall be private enterprise from if it is cost-effective. Comparison The Circular a Cost contains Hand- (b) Nothing preclude in this section shall outlining procedures book to be followed in any agency organization labor determining whether is most negotiating— petition cost-effective. Since the in this case filed, was OMB Circular A-76 has been revised. procedures which officials way The revision in no affects the issues before exercising any will observe in us. section; authority under this 7105(a)(2)(E) 7106(a)(2)(B), (b)(2). provides U.S.C. § that the Au- §§ 5 U.S.C. thority relating shall issues “resolve[ ] to the union, appeal, in this The intervenor is the bargain." provides duty The Act further that Employ- American Federation Government Authority argued before stantive limitations EEOC discre- Id. proposal nonnegotiable was tion. the union First, con reasons.5 it primarily two Authority further concluded that the proposal conflicted with tended that proposal nonnegotiable was not rendered to management reservation express Act’s by the terms of Circular. appar- EEOC make determinations with right “to adoption ently proposal asserted that contracting out.” 5 U.S.C. in subjecting contracting- would result all Second, argued 7106(a)(2)(B). disputes grievance negotiated out (the Circular) A-76 it Circular OMB procedure, conflicting thus Circu- negotiation over prohibited proposa self lar’s intent resolve allow EEOC to such 12-13. l.6 J.A. at disputes Authority internally.7 reject- Authority is- underlying assumption ed EEOC’s September On pro- holding tracting-out disputes are grievable sued a decision union not bargain- posal mandatory proposed the absence of the contract lan- Federation Rather, American Govern- ing. guage. 10 FLRA at 4-5. Au- Employees, AFL-CIO National thority such disputes found that were al- Equal Em- Council EEOC Locals grievable ready under section 7121 of the Commission, ployment (1982). 10 FLRA 3 Act and the Circular alone could not the statutorily prescribed concluded that limit impair statutory did grievance procedure.8 EEOC’s 10 FLRA at 4-5. Concluding make decisions because it proposal that the contract recognized only existing prohibited by limitations not either Act or the the terms, Circular, By power. Authority EEOC’s its ruled the the ordered EEOC to Id. at 5. proposal the Authority, bargain. established no sub- agency bargaining provides "if an involved in collective Circular The that its text “shall not be duty bargain alleges good any proce- ... to faith construed to ] createf matter, any may any person challenge does not extend to the [union] dural basis for to allegation appeal Authority.” . agency to the U.S.C. 5 action or inaction on the basis that such 7117(c)(1). Authority required The is issue § action was not in accordance with Circu- [this] lar, containing except a decision specifically written reasons for its set forth in [this Circu- Authority If determination. concludes that J.A. at 37. The Circular lar].” further directs disputed scope duty agencies procedures develop issue is within informal bargain, agency bargain it orders the pursuant review of determinations made to its not, however, good Authority provisions faith. The does procedures and states those proposal. Library agency address the merits of the subject negoti- See are determinations not FLRA, 1280, (D.C. Congress v. F.2d 699 1284 J.A. ation arbitration. at 50. of Cir.1983). argument expressly 7. This is not articulated in proposal If a is determined to be within the position the EEOC’s statement of before bargain, duty parties negotiate, must al- Authority. rely Authority’s We therefore they on the though particular position adhere to agency’s position. characterization of the See point impasse. impasse to the reached, If an is Employ- American Federation Government parties may dispute refer the ees, AFL-CIO, National Council of EEOC Locals Impasses Federal Service Panel. U.S.C. 5 Equal Employment Opportunity 7119(b), (c). and sion, Commis- §§ (1982). 10 FLRA at 4-5 here, arguments In addition to the two noted proposal also asserted fell 7121(a) requires § 8. 5 U.S.C. all collective bar- duty bargain outside the because gaining agreements system to include a for set- directly it involved matters that do not affect grievances. tling negotiated grievance pro- employment. conditions FLRA's provide binding must cedure arbitration for sion did not address this contention. American grievances through procedure. not settled 5 Employees, Federation Government AFL- 7121(b)(3)(C). broadly is § "Grievance” CIO, National Council EEOC Locals and any complaint concerning defined in the Act as Commission, Equal Employment Opportunity employment, ment, agree- terms a collective (1982). law, 10 FLRA 3 Since the EEOC did interpretation or the rule or court, argument petition raise this in its regulation affecting employment. conditions of we 7103(a)(9). will not discuss the issue. § 5 U.S.C.

847 defensible,” timely petition “reasonably for review Act if it is De filed a EEOC cross-peti- FLRA, The FLRA filed partment v. in this court.9 of Defense jurisdiction have enforcement. We tion for 1140, (D.C.Cir.1981), cert. de 1162 n. 121 to 5 U.S.C. 7123.10 pursuant nied, 945, 102 S.Ct. 71 Alcohol, (1982); Bureau of L.Ed.2d 658 II. Standard of Review FLRA, Tobacco and Firearms v. 104 S.Ct. provides that the Author The Act (1983), and not inconsistent with in accordance ity’s rulings are reviewable congressional policy.11 mandate or 10(e) section of the Administrative (APA), Procedure Act 5 U.S.C. Analysis § 7123(c) (1982). (1982). See 5 U.S.C. III. up Authority’s determinations will thus be Authority improp- EEOC asserts that the they supported by “if are substantial held erly construed the terms of the arbitrary, capri are not ... evidence^] clause, probable as well as the cious, are or an abuse of discretion^] disputed proposal. effect of the EEOC in accordance with law.” Na otherwise suggests plain first text of the Employees v. Treasury Union tional rights clause insulates FLRA, (D.C.Cir.1983). F.2d all proposals regard- collective where, as Review is further circumscribed Second, ing contracting-out. EEOC con- here, Authority has construed its enab proposal nonnegotiable tends Indeed, ling legislation. adoption because entitled to “considerable deference” when tracting-out statutorily pre- decisions to the interpreting applying provi the Act’s grievance procedure, infring- scribed thus situations. Bureau Al specific sions to on EEOC’s reserved to make cohol, Tobacco and Firearms

— Finally, decisions. -, 104 S.Ct. U.S. argues (1983). is inconsistent Accordingly, L.Ed.2d 195 we will uphold Authority’s interpretation of the with the Circular. court, request thority,

9. EEOC filed a for reconsideration with and not the must exercise the 16, Authority September judgment necessary pro to the on 1982. J.A. at 64. determine whether a 18, 1983, posal allegedly Authority management's March the issued an that violates On denying request. rights bargainable. is order the EEOC’s Brief for distinction be ”[T]he Authority proposals encroaching management’s Federal Labor Relations at C-l. tween on non-negotiable authority and those concerning properly negotiable procedural 7123(a) mat provides ”[a]ny per- 10. 5 U.S.C. that primarily Authority ters to be [is] made the aggrieved by any final order of the Authori- son ____” expertise an exertion of its National ty judicial ... ... institute action for FLRA, Treasury Employees Union v. 691 F.2d Authority’s review of the order ... in the United (D.C.Cir.1982) (footnote omitted) (cit Appeals States Court of for the District of Co- ing Department Authority may petition any ap- lumbia.” The of Defense denied, (D.C.Cir.1981), cert. propriate appeals United States court of for en- (1982)). 102 S.Ct. 71 L.Ed.2d 658 any forcement of of its orders. 5 U.S.C. 7123(b). Vanguard The dissent’s reliance on Interstate Tours, ICC, (D.C.Cir.1984), Inc. v. F.2d is misplaced. Vanguard, 11. The dissent contends that the Act’s reserva- In the statute at issue in management Congress expressly previ- to contract-out tion to limited the discretion Authority’s power ously granted precise a limitation on the to direct is labor-management to the ICC and set out the Here, Consequently, governing relations. ar- criteria the issue in the case. dissent, contrast, gues Authority’s interpretation expressly delegated the has scope management’s rights Authority resolving reserved is the ing task of issues relat- great duty bargain. not entitled ignores deference. dissent We therefore con- dispute management rights the fact that the here concerns clude that even if the clause negotiability specific proposal. power of a Con- acts as a limitation on the of the Authori- gress expressly Authority ty, Authority’s expertise pri- entrusted to the exercise of its power obligation marily par- and the to resolve all such to determine whether an issue in a disputes. supra negotiable See note 4. Decisions in this ticular case is to defer- is entitled uniformly recognized have the Au- ence. circuit that A. proposal The union suggests here tract language that essentially echoes the the management asserts that EEOC statutory requirement that gives management rights clause unfettered determinations be made in accordance with authority to make determi- applicable Any laws. imposed restriction assuming Apparently nations. proposal management’s contract- proposal regarding contracting-out will re- ing-out authority thus stems from the Act’s authority, suggests strict EEOC this EEOC, course, mandate. comply must rights management clause renders non- requirements with these regardless of negotiable proposals regarding con- all proposal whether the adopted part tracting-out. agreement. collective pro- The union posal at issue here thus does not of itself argument is EEOC’s untenable establish guiding substantive criteria light plain text of the clause. The management’s contracting-out determina- management rights provides clause tions. We therefore agree with the Au- “nothing in shall affect the au [Title VII] thority’s conclusion that does thority any management official of not affect management’s reserved authori- applicable in accordance with —... ty, within the meaning of statutory make laws — ... to determinations with re language, to make contracting-out deci- spect contracting out.” 5 U.S.C. sions.12 § 7106(a)(2)(B). language plainly re authority manage stricts reserved to points expression to no of intent by requiring ment that it be exercised “in in legislative history that contradicts accordance with laws.” In addi Though conclusion. far from conclu- tion, 7106(b) provides proce sive, section legislative history indicates that rights dures used to exercise are negotia rights clause should not supra ble. See note 1. Because the Act interpreted negate the Act’s broad grant management does not unqualified duty bargain. In adopting the manage- contract-out, authority to union proposals clause, Congress sought to re- touching upon that authority are not auto serve to the authority neces- matically rendered nonnegotiable. Rather, sary to achieve an effective and efficient management may refuse to bargain government. over time, At however, the same only proposals those expand Congress intended to broaden the scope of upon the restrictions contained in the Act. bargaining beyond that sanctioned under See note 12. previous labor-management relations infra 12. precise scope management’s reserved agency’s focused on the retention of previous difficult define. In rul degree the full of discretion that exists in the ings, Authority effectively has defined the proposal. absence of the analysis We find this protection management by classifying accorded fully acceptable guideline as a to determine the proposals negotiable procedures as either under rights substantive reserved to 7106(b) nonnegotiable section or substantive ment. two, rights. distinguish To between the the Au The dissent misconstrues both the direct inter- thority developed a "direct interference” import ference test and the of our conclusion test, proposal test. Under this involves a non here. The essentially direct interference test is negotiable right "directly substantive if it would definitional. particular It determines whether a management’s interfere” ability to make proposal is in fact substantive and therefore repeatedly relevant We determination. have nonnegotiable. Although Authority did not Authority’s affirmed the use of this test. See here, expressly apply this test it did use the FLRA, 1140, Department v. 659 F.2d of Defense analysis: only same proposals functional (D.C.Cir.1981), denied, 945, 1159 cert. substantively management’s limit contracting- 1443, (1982). 102 S.Ct. Although 71 L.Ed.2d 658 out nonnegotiable determinations involve present in the case the did not ex rights. Implicit Authority’s opinion is the pressly classify proposal procedural disputed proposal conclusion that the represents explicitly apply did not test, the direct interference procedural more of a than a analysis quite limita- used was similar. In management’s tion on concluding proposal negotiable, that the contract-out. was

849 alleging that by tract-out EEOC violated Thus, explained, as one member system.13 agreement failing in the collective com- protect “genu- designed to the clause appropriate procedures. Any con- ply with Indeed, managerial prerogatives.”14 ine subject tracting-out decision would then be clause was to Congress directed procedures ultimately grievance collective read to favor “be EEOC, According to con- arbitral review. negotia- as to the there is doubt whenever tracting-out decisions could thus become proposal.” bility of a or management but of prerogative not of sum, the text nor the In neither way, implies, In this EEOC the arbitrator. history mandates a conclusion legislative precise- union would be able to achieve Authority. reached other than that rights ly management what the clause was therefore, the Authori say, We cannot prevent. intended to concluding that the arbitrarily in ty acted argument assumes that a com- EEOC’s reserved does not affect EEOC’s proposal plaint asserting that a de- argument that reject EEOC’s rights. We in termination was not made accordance rights clause renders the laws, Circular, including the nonnegotiable. grievable in the would not be absence of proposal. assumption, the contract B. however, contrary to the text of the Act. argues that even if next EEOC expansively subjects The Act defines the impose proposal does not text of the statutory grievance pro- under the covered restrictions, adoption would additional complaints include con- cedure. Grievances ability to make effectively hinder EEOC’s violation, cerning “any misinterpre- claimed Specifically, decisions. tation, law, rule, any misapplication proposal would contends that regulation affecting conditions of em- management rights by its reserved invade complaints ployment” as well as “concern- making compliance with the Circular a con ing any relating employment matter to the prerequisite decision re 7103(a)(9).16 tractual employee.” 5 U.S.C. contracting-out. including The union could garding Only subjects, five the sub- contracting-out, expressly are ex- challenge ject decisions to then EEOC’s 1403, employment.” Cong., 2d Sess. 43 over conditions of H.R.Rep. 95th Cong.Rec. No. 13. 29,183 (1978), (1978), Legislative History Representatives reprinted in at reprinted House of in Service, adopted on the and Civil 924. The amendment House Committee on Post Office Sess., Cong., Legislative History adopted Confer- floor was the House-Senate 1st 96th change. H.R.Rep. Labor-Management Relations ence Committee without Federal Service Statute, No. 1717, (1978) (Con- Cong., Act 2d Sess. 153-54 Title VII of the Civil Service Reform 95th Cong. Legislative History] Report), U.S.Code & Admin.News cited as ference [hereinafter of 1978 Legislative History (1979); p. reprinted Treasury Employees see National at 689 (D.C.Cir.1982). 821-22. Union 29,199 7103(a)(9) (1978) (remarks provides Rep. full: 14. Cong.Rec. Ford), Legislative History reprinted at 956. (9) "grievance” any complaint— means (A) any employee concerning any mat- Cong., H.R.Rep. 95th 2d Sess. 44 relating employment employ- No. ter ee; to the (1978), Legislative History reprinted at 690. appears clause that (B) concerning by any organization labor adopted relating employment the Act was as an amendment on matter reported by the Hous House floor to the clause employee; or e (C) any employee organization, Post Office and Civil Service. by Committee on labor or amendment, however, change concerning— agency did not This (i) explained interpretation, purpose the clause as in the or a behind the effect or claim of breach, bargaining agreement; report accompanying version of the Committee of a collective "This substitute amendment that or [the strengthens the bill. violation, (ii) any misinterpreta- adopted claimed on the 'Man floor] tion, law, rule, any by misapplication agement rights’ tee, reported or of or the Commit section affecting employ- narrowly regulation of conditions be treated as an but it is still to obligation bargain general exception ment. to the 850 “nothing grievance provides coverage rights under ment clause from that eluded chapter this affect” management’s shall allegation that An mechanism.17 contract-out, such decisions comply with the OMB failed to Cir- EEOC grievance procedures. are removed from 5 cular, govern- law or any or with other rule § 7106(a) (emphasis added). A falls within ing contracting-out, plainly this grievance alleging noncompliance with expansive definition.18 Circular, however, manage- does not affect however, maintains, that in addi- EEOC authority, ment’s within the subjects expressly designat- to the tion five meaning statutory language, con- Act, preroga- all section 7121 of the ed in Rather, provides procedure tract-out. it a reserved to under

tives enforcing requirement Act’s clause are rights excluded decisions be made in ac- grievable. matters of from applicable cordance with laws.19 sub- Any asserts because the stantive on management’s limitation au- grievance (D.C.Cir.1981). requiring proce- a legislative The 600 n. [sections 7 17. apply any griev- history shall not dure] of Title VII nowhere indicates Con concerning— gress ance intended such a restriction on the (1) Indeed, granted any subchapter employees. claimed violation of III has sanction, chapter (relating prohibit- consistently 73 of this title adopted, of with this court's activities); political ed interpretation phrase a broad "conditions insurance, (2) retirement, life or health in- employment.” Department See v. of Defense surance; FLRA, (D.C.Cir. 685 F.2d 647-48 & n. 3 (3) suspension a or removal under section 1982); Treasury Employees National Union and title; 7532 this Service, Internal Revenue 3 FLRA No. 112 at examination, certification, ap- or (1980) (conditions employment con pointment; or working employment cerns situation and rela any position the classification of which Moreover, employee). tions of unit grade not does result in the reduction in or notes, as the dissent itself the term "conditions pay employee. of an employment” personnel policies includes 7121(c). U.S.C. § practices affecting working as well as matters conditions. if See Dissent n. 12. Even complaint a dissent contends that assert- phrase affecting working "matters ing comply a conditions” failure to with the Circular does comprises only statutory surroundings, hazards and griev- fall within con not definition of decisions, tracting-out grievance ultimately may re ance. Because the Act defines to in- layoff, undoubtedly alleging regulations sult in a clude claims "affecting fall under the um violations personnel policies employment," practices. brella of conditions of and be- addition, employment" In cause "conditions of is in we note that the turn dissent’s restric- affecting working applies only grievances defined as tive "matters condi- definition de- tions,” grievances 7103(a)(9)(C)(ii) the dissent maintains that fined are in section as violations of involving surroundings regulations affecting restricted to claims employment. conditions of course, hazards. analysis, apply dissent's does not grievances 7103(a)(9)(A) defined in "working sections The dissent's narrow definition of (B) relating employment matter apply in the conditions” does not context of this employee. working of an A claim Act. The that work was im- definition of conditions as properly surroundings surely Corning hazards and derives contracted out falls within Brennan, 188, 201-03, grievance. Glass Works v. definition of 2223, 2231-2232, (1974), S.Ct. 41 L.Ed.2d a grievances alleg 19. The dissent maintains that construing language Pay Equal case comply a failure to laws Corning Act. The Court Glass Works based regarding manage will affect “working definition of the term conditions” implementation delaying Congress’s expressed of decision. intent as in an exten- course, decision, Of review of an legislative sive discussion of the term in the history through whether conducted Equal Pay courts or Act. The Court noted mechanism, grievance "working may contractual generally cause has a conditions” ac- delay. recog cepted meaning previously some court "specialized language in the job systems.” may delay, nized that a evaluation 417 U.S. at result in including adopted delay process, S.Ct. at 2232. A created definition arbitral specific light infringe management’s of a need text statute and in au of a de- reserved however, legislative history, thority, negotiable. tailed diately is not imme- thus be See De partment case. Copper transferable to this See v. 1153— 659 F.2d at of Defense Valley Works, Andrus, Machine Inc. nonnegotiable. noted, externally proposal As the estab- the Cir- thority stems in the Circular. contained its provisions criteria cular states that “shall not be lished note 12. accompanying We text supra See any right appeal to create” construed grievance asserting that a find therefore except provided in the Circular itself. comply with its management failed to that Au- 37. EEOC maintains that the J.A. at in parameters mak- statutory regulatory thority’s ruling proposal negotia- that the is not pre- is contracting-out decision ing a limiting conflicts with the ble Circular’s rights management clause.20 by the cluded language it allows alternative en- because proce- grievance statutorily defined through the grievance forcement actions encompasses a claim that a dure therefore compel us mechanism. Two considerations contracting-out was not determination reject argument. to this with EEOC’s ini- law. made accordance First, proposal not the inconsistent proposal assumption including the that tial limiting language. with the Circular’s bargaining agreement in the collective right not does “create” new expose the time EEOC’s first would Rather, already appeal. as we have to contracting-out employee determinations review, determined, challenges, right grievances and arbitral file re- grievance plain Act. by the text is contradicted garding decisions is created pro- adoption that thus conclude We Act. expands employee’s an way posal no Second, important, and more the Circu- challenge management’s contract- right to language lar’s restrictive cannot be grievance pro- ing-out decisions under the statutory right file strued to limit Accordingly, reject we EEOC’s cedure.21 asserting grievances a violation of contraet- impair proposal will contention ing-out regulations. There is no indication by making compliance management rights a congressional Act or elsewhere of prerequisite a contractual with the Circular agencies limit by regula- intent to allow contracting-out decisions. statutorily grievance pro- tion the defined C. allow text of cedure. To the Circular scope grievances to restrict Finally, argues that lan place placed renders the “limitations in the statute not guage of the OMB Circular sup- ployees reading Act is Union v. Our of the text of the 564-65 (D.C.Cir.1982) although legislative history. Congress (noting ported un- that establish- management rights ambiguously clause, performance encompassed ment stated standards instance, rights, management’s employees does not affect least in one reserved within employee’s right require- grievance may challenge pro- the Act’s an enforce those standards management exercise its reserved ceedings). ment right applicable with suggests in accordance laws and re- The dissent conclusion regulations. statutory quires grievance us construe applicable an mechanism as law with which [Management right has the to make reserved construction, comply. must employee, final decision "remove" dissent, suggests comport does not with the but that decision must be made accordance "nothing statutory language states that applicable procedures, laws and and the management's authority Title affect” VII shall any applicable provisions collective bar- regarding contracting-out. make determinations gaining agreement. reserved We whether do not determine here the section way in no to “remove" would grievance "applicable mechanism is an appeal employee’s affect the Rather, or, only griev- law.” we statutory procedures conclude through appli- if sion cable, alleging ance com- through procedures has not set forth in a plied externally agreement. established criteria does collective 29,183 (1978), management’s Legisla- reserved reprinted in affect Cong.Rec. History Similarly, authority. we believe that tive at 924. right to EEOC’s reserved make determinations grievance procedure 21. The can of regarding does not insulate negotiation. be limited in We address course challenges, through grievance EEOC from mechanism, grievance only statutorily pro- defined here asserting violations of cedure. regulations. Treasury National Em- laws Cf. 852 Congress.” Colgate-Palmolive The FLRA essentially (1)

there held that man- 355, NLRB, agement has a 70 to make determina- Peet Co. (1949). regarding (2) tions 166, 171, contracting-out; L.Ed. 161 Accord such S.Ct. determinations must be argument made accordance ingly, reject EEOC’s that the we regulations; violations negotiation proposa over the Circular bars regulations of such are already grievable l.22 under the Civil Service Reform Act of 1978 regard without to the necessity making IV. CONCLUSION grievable them bargaining a collective herein, stated For the reasons we con- agreement; and thus provision in a Authority’s interpretation clude that collective agreement requiring upheld should be and that its order should regulations adherence to such does not in- be enforced. fringe agency’s specific, existing right to “contract out” because it does not make

Judgment accordingly. nongrievable grievable. matters The es- sential flaw in the reasoning FLRA’s —and MacKINNON, Judge, Senior Circuit dis- the one adopted by majority that, —is senting: contrary assertion, to its violations of Cir- cular regulations A-76 and other regarding majority I opin- Because believe that the decisions are seriously ion misreads the statute which statutorily grievable. Hence, inclusion case, I my duty controls this consider it in a bargaining agreement collective of a opinion majority dissent. The holds promise to comply with the Circular’s that the bargain propos- EEOC must over a terms permit the union to seek arbi- which, al under the Federal Labor Rela- tration on issues grieva- that are not now Authority’s (FLRA’s) interpretation tions ble, and would create arbitral review of statute, nullity. is a total major- The determinations specifically entrusted ity incorporation holds that into the collec- Congress to the EEOC and all other federal bargaining agreement promise tive of a agencies. far-reaching poten- decision comply applicable regulations, includ- tially every non-exempt affects federal A-76, ing require OMB Circular does agency. “contracting-out” all subject decisions be grievance determinations, but that such a plainly recognizes this; union why provision management’s affects neither au- else does it strenuously impose seek so thority to existing contract out nor the collective bargaining provision that —the union remedies for regu- violations of that majority implicitly gives it noth- asserts — lation.1 ing it already possess? did not Far from argues 7117(a)(1) 22. EEOC also that section previously proposal The FLRA has held that a Act, prohibits bargaining which over mat- purported agency specif- to bind an laws, ters that are inconsistent with other limits ic terms of Circular A-76 as of the date of the grievance procedures. the matters effect, proposal thus, prohibiting — 7117(a)(1). bargain- U.S.C. § EEOC asserts that government subsequently changing over is inconsistent with the regulation non-negotiable. See National —was management rights clause and therefore con- Employees, Federation of Federal Local tracting-out determinations are excluded from (1981). case, F.L.R.A. In the instant grievance Reply mechanism. Brief for Peti- ("The language [agency] agrees at issue proposal tioner at 5. EEOC’s that the assertion comply A-76”) with OMB Circular can also be at issue in this case is inconsistent with other read, require like compli- that in Local law is derivative in nature. EEOC contends the present ance with the terms of the Circular. proposal is inconsistent with the FLRA, however, apparently interpreted rights stated, however, already clause. We have proposal only require to com- not, management rights clause does ply with the Circular as it is amended from time face, proposal nonnegotiable. render to time. cannot be “inconsistent with other law” if it is not inconsistent with the clause. uphold courts should reasonable and nullity, the decision being a authority, specifi- agency’s constructions infringes on the seriously defensible enabling Act, other ... they the and all must not “rub- cally reserved stamp determina- ber ... administrative decisions Congress, “to make agencies by contracting they out.” 5 deem with a stat- respect inconsistent tions with § 7106(a)(2)(E). mandate or utory the U.S.C. frustrate policy congressional underlying a stat- ” REVIEW OF I. STANDARD ute. recognizes “[rjeview of added.) standard, (Emphasis Applying this on the record Authority’s order shall be unanimously the Court reversed 5 with in accordance U.S.C. [5 706].” enabling FLRA’s own construction of § 7123(c). provides: Section 706 principle The same calls for rever- statute. reviewing court shall— here. sal especially should be cautious Courts agen- and set aside hold unlawful agency giving undue deference to about action, findings, and conclusions cy legislation of enabling construction when to be— found particular provision being construed (A) designed to act as a on the arbitrary, capricious, an abuse one limitation out, discretion, agency. recently pointed As this court or not in ac- of otherwise law; with cordance [or] Congress’ delegate to When intent is to agency supplying the task of meaning of the standard in statutory (C) statutory jurisdic- excess of question, accept we are bound limitations, tion, authority, or if arbitrary capri- view it is not agency statutory right____ short of underlying cious or inconsistent with added.) Thus, of (Emphasis the standard gressional Congress intent. When spelled FLRA out decisions was review agen- this delegated function in Bureau recently Justice Brennan of cy, interpretive we must undertake full Alcohol, FLRA, Tobacco and Firearms v. ourselves, responsibility and we look — -, 439, 444, 78 U.S. S.Ct. relevant, agency view as a but not (1983): L.Ed.2d controlling, principle. It remains for Board, National Relations Like the Labor initially respon- this court exercise its develop FLRA was ... intended to interpret sibility to the statute to deter- specialized expertise in its field of labor Congress delegated mine whether expertise to relations and to use that agency. definitional function to the goals give principles content to ICC, 735 Vanguard Interstate Tours v. Act____ Consequently, set forth (D.C.Cir.1984); Trailways, F.2d Authority is to considerable entitled ICC, (D.C.Cir. 727 F.2d Inc. v. “special it deference when exercises its 1984). applying general provi- of function complexities” sions of the Act provi- Congress particular If intended a relations____ federal labor agency, the authority sion to limit of an hand, agency deferring the other the “deference to an decision which evis- On legis- expert provision to an cannot be would foil that owed tribunal cerated slip inertia When limits the judicial allowed to into a lative intent. agency, as- of an is remiss if which results the unauthorized discretion a court policy agency sumption by agency major permits an it to circumvent that through properly by Congress.” construction of the stat- decisions made limitation Accordingly, doubly doing reviewing ute.2 It is remiss if so it while FLRA, bargaining by procedur- Department require over In Justice v. (D.C.Cir.1983), probationary employees. protections the FLRA tried to al 729-30 specific manage- grant A. a clear violates agency. another discretion to ment provides: Section 7106 (“Labor-Manage- (a) Subject (b) Title 5 Chapter In 71 of to subsection sec- this tion, Relations”), which chapter creates the shall affect provided “noth- Congress specifically any management offi- shall authori- [Chapter any agency— cial 71] affect any agen- any management official of ty of mission, budget, to determine the laws cy ... in accordance organization, employees, number of ... make determinations security practices internal § 7106(a)(2)(B) contracting 5 U.S.C. out.” agency; and added). specific recognition (emphasis (2) in with applicable accordance agencies federal affirma- authority in all laws— authority tively any FLRA to denies to the agency “affect” of an to the (B) work, assign to to make deter- FLRA “contract out.” An decision which minations with to contract- specifically recognized encroached on this out, ing person- and to determine the plain violate the intent of power would thus by operations nel which agency shall Congress. have in- Since cannot conducted____ be FLRA give tended to the discretion to er- (b) Nothing in this section pre- shall specifically the it on placed ode limitations any agency clude organiza- and labor statute, Authority by it cannot have -from negotiating— tion give great intended that courts deference (1) the to FLRA’s construction of such limita- at the agency, election the on extent, then, numbers, tions.3 To the the the types, grades and of em- “statutory jur- FLRA’s decision exceeds its ployees positions assigned isdiction, limitations,” authority, organizational subdivision, work 706(2)(C),it is not entitled to deference. project, duty, or tour or on interpre- This court methods, “must undertake full technology, and means [itself], responsibility tive and look work; ... performing agency relevant, as a view but not (2) procedures which management controlling, principle.” Vanguard Inter- agency officials of the will in observe state, supra, 735 F.2d at 596. exercising any authority under this

section; or (3) appropriate II. arrangements ANALYSIS for employees adversely by affected Although asserts that any authority exercise of under this plain language statutory relevant by management section such officials. construction, provisions supports its see § Maj. 848, 851, language added). (emphasis relevant U.S.C. 7106 In other points plainly exactly words, opposite inter- this section the Act on its face pretation. specifically provides Chap- (The right FLRA, probationary employees Employees (D.C. to dismiss Union v. 691 F.2d 553 management provisions Cir.1982), reserved to under Authority, scrupu in which the 5.) parts other Title of U.S.C. This court refused imposed concern lous for the limitations it on agency’s to defer to the construction of labor by Congress, held that could it not order bar AFGE, provisions relations at issue. But Lo gaining particular proposal over a in without 1534, (D.C. cal 2953 v. 1547-48 fringing rights. de This court Cir.1984), agency’s we affirmed decision Authority's interpretation. ferred But that a requiring National Guard units require uphold that decision does not us to ignore efficiency implement military when Authority’s interpretative power use of its ing -bargainable. was non reductions-in-force specific Congressional emasculate restrictions authority. on its The majority highly for its relies deferential Maj. Treasury stand' —see at n. 11—on National management’s could rationally circumscribe au- ter 71 can have based its decision on regarding “procedures” thority provision 7106(b). to make decisions tracting-out, except limitations In assuming event —even that the lan- 7106(b) 7106(b). provides guage Subsection could be supporting twisted into (1) “proce- negotiate position so, did FLRA not do —the will dures which agency prohibited ... observe relying court on a exercising (2) authority,” “ap- ground not See agency. advanced [its reserved] arrangements Corp., v. Chenery propriate employees 80, ad- SEC 95, 318 U.S. 454, 462, versely (1943) (“admin- affected the exercise of S.Ct. 87 L.Ed. 626 [such] added), authority” (emphasis at its istrative order upheld cannot be unless the election, assignment employees partic- grounds upon the agency acted in projects carry- ular exercising powers work means of upon were those projects. out such sustained”); which its action NLRB can Enterprise Pipefitters, Association of the FLRA did attempt Significantly, 522 n. 97 S.Ct. 900 n. proposal at issue the contract construe 51 L.Ed.2d 1 (Chenery rule “has relating “procedures ... not been subsequent disturbed” implementing in its contract- will observe” sions). decisions, majority which the ing-out a fact majority attempts escape The to this Indeed, it 848 n. 12. recognizes. See Maj. at that, problem by arguing while the FLRA Circu- how OMB comprehend to is difficult specifically did not find that provision provisions of could fit under lar A-76 procedural, it nevertheless “simi- used scope Cir- 7106(b). purpose of that and analysis lar” to that used in involving cases paragraph: spelled in its first out cular are i.e., procedures, its “direct interference” Purpose. This Circular establishes Maj. test. simple 848 n. 12. The answer policy regarding Federal perform- to this is that a determining test for the va- ance of commercial activities. Sup- procedural lidity provisions entirely is plement to the Circular proce- sets forth validity to substantive irrelevant re- determining whether commer- dures for § 7106, Under restrictions on strictions. cial activities be performed should un- procedures indirectly which affect con- der contract with commercial sources tracting-out by management well may be or in-house using Government facilities § 7106, proper they because fall within but personnel. and non-procedural restrictions which affect or indirect- right directly —whether (rev. 4, 1983) Aug. OMB Circular No. A-76 ly clearly not. —are added). words, (emphasis In other the Cir- Moreover, its accompanying Supplement cular and are the limited term designed guidance to offer in agencies “procedures” (b)(2) empha- subsection is i.e., making (b)(1), contract decision to sized subsection Con- which out— policy-making crite- provide gress provided bargaining for over “the ria —not procedures carrying for employees positions assigned out ... (1) already If project, methods, sions made. the Circular work on ... or the ... provides work,” substantive criteria for performing contract- and means of but only out, bargaining and over substantive “at the election agency.” Congress contracting prohibited by for out is recognized criteria agency to elect law, bargain then a propos- subjects collective on some that are not require purports al agency mandatory. Congress’ specific treatment projects not negotiable. meet is of work majority’s substantive criteria belies the It appear therefore does FLRA not that the struction of the statute.4 It makes little term, project did not define the "work be considered to be a constitutes project" analogy By part agency’s complete Act. term work load. See works,” however, "project project” may a "work Ontario Land Ass’n v. Dev't & Beach Protection “contracting] out” made “in accordance with suggest laws.” sense mandatory majority perforce project is a construes this to any specific work provi- mean “in accordance with the other this subsection negotiation when subject of Chapter sions of 71.” negotiation “any on clearly provides “at the election of project” work is pointed It should first out that the agency.” opinion FLRA in its did not offer this inter- pretation of the statute as a basis key majority’s It be that decision, only thus the is not Although opinion footnote is its speculating relying ground, this as pro- that the did not hold Authority itself ignoring principles but is also of Chen- procedure” only “a un- posal at issue was fact, ery, supra. The heretofore 7106(b), majority finds der recognized that substantive decisions really merely footnote regarding management rights are not re- procedural, and hence the grievance procedure: viewable under the apply at all.5 But rights provisions do plain language Under the Authority’s opinion despite of section neither — 7106(a), course, “nothing” in the Stat- majority’s agen- of what that divination authority” ute shall “affect of an say lan- cy meant but did not —nor agency to exercise the enumerated guage history of the statute lends Hence, therein. no matter could be requiring support compli- to the notion that grieved procedure negotiated under a decision-making cri- ance with substantive pursuant to section 7121 Statute teria, subjecting such substantive deci- deny which would of an review, sions to more arbitral statutory rights to exercise its “procedure” exercising authority than a under section 7106. out. to contract 2782, 314, AFGE Local 6 F.L.R.A. 319-21 (1981)(footnote omitted). B. sug- There is no gestion in phrase Local 2782 that the “in however, majority, attempt does not applicable accordance with laws” can be rely sponte solely finding on a sua that permit grievance used to review of non-ne- provision procedural. at issue is In- gotiable substantive decisions.6 stead, heavily it rests on another limitation § requirement in it finds 7106: the assuming But even that the FLRA had regarding proffered decisions be interpretation,7 this it could not 227, FPC, (D.C.Cir.1954); negotiable explicit provisions Che- are under the of 5 cf. FPC, 395, 7106(b)(3). mehuevi Tribe 401, Indians v. U.S.C. § 1066, 1071, (1975) 95 S.Ct. 43 L.Ed.2d 279 (Congress recognized "project in definition that interpretation arguably 7. This was advanced part project). works” were of a limited to whole the FLRA in National Federation of Federal 1497, Employees, (1982). Local 9 F.L.R.A. 151 is, fact, majority holding, 5. If this what the case, proposed In that the union that "[w]ork probably then footnote 12 renders the remain- assignments prohibit- shall not be in violation of majority's opinion particularly der of the — law, personnel practices ed rule, nor relevant phrase discussion of the "in accordance with regulation." right assign work is applicable verbiage, laws”—mere because it is management rights one of the reserved under crystal "procedures” carrying clear that for out 7106(a). agen- § The FLRA held that since the management rights decisions are not within the cy required management to exercise its clause. law,” applicable "in accordance with a provision binding contract it to do so did not 6. The FLRA’sdecision in Local 2782 dealt with rights. repromoting interfere with its a for 9 F.L.R.A. at 156. Im- individuals who had plicit grade assumption in this been determination is the reduced in due to cut- assignment that a regula- backs. It violation of the work was not a case where substantive involved; regulations grievance carefully procedure tions would fall were the FLRA within the out, pointed argument of case; the same § F.L.R.A. at that it involved relied on in this here, simply arrangements “appropriate employ- for as demonstrated this view is at odds adversely by management’s statutory ees affected with the scheme of exercise the Act. But even 7106(a),” correct, authority assuming of its under section which that the result in Local 1497 is provided scrutiny. Congress labor arbitrators the FLRA. Again, withstand that, 7106(b),nothing Chap- except legislative for shred history there is no management’s authority, affect shall Congress ter 71 which indicates intended laws,” to with “in accordance tracting-out grievable. decisions to be But respect to con- determinations with make the intent of can be inferred from tracting-out. To reach its conclusion that say what it wrote. It did not that contract- grievance procedure is somehow the whole (and ing-out decisions the other majority sweep, from that excluded rights) “non-negotiable.” are Had it phrase “applicable read the laws” to must so, grievance done arguably review would Chapter 71. include the remainder Instead, that, except still remain. it said Thus, it in effect reads the statute as fol- § 7106(b), nothing Chapter can “Nothing [71], EX- chapter lows: to make affect contracting-out ALL THE OTHER PROVISIONS CEPT decisions. The latter OF CHAPTER INCLUDING phrase singularly be inept would if what (PRESCRIBING PROCE- GRIEVANCE former, Congress meant was the and at DURES), shall affect the least in the absence of clear Congressional any agency official of ... manifestly intent or a unsound result this determinations to con- make refrain directly violating court should (italicized tracting sup- out ...” matter language express adopted by Congress. It is the act to plied). absurd to construe say “nothing" Chapter rest C. management’s right, 71 affects but that Next, if even we assume that Chapter the rest 71 does affect term “applicable laws” does include all the right. This construction is at variance Chapter rest of of a exercise interpretation reasonable of the stat- non-negotiable management right is sub- points majority ute. ject grievance provisions, far it is legislative history spe- indicates from clear that failure to comply with cifically denominated, non-negotiable rights Circular A-76 meet the definition “management conferred on were officials” “grievance” purposes of 5 U.S.C. subjected grievance nevertheless § 7121. and arbitral review. “grievance” The term is defined restric- It be that the is not read- tively by Congress 5 U.S.C. ing broadly, the statute that all of § 7103(a)(9)(C)(ii), relevant, as here Chapter the remainder of 71 falls under violation, “any claimed misinterpre- mean8 “applicable laws.” may, perhaps, It be tation, rule, misapplication law, (unarti- of suggesting simply that Congress’ § culated) 7106(a) regulation affecting intent in to shield conditions em- was of added).9 decision-making process ployment” (emphasis negotia- The term tion, but not from subsequent employment” review “conditions of is also restrie- assignment 7103(a)(9)(B), it does not control this case. The and then asserts that a viola- employees work in that the deci- case—unlike tion of substantive criteria arguably to contract sion out in this does "surely Maj. falls within this definition.” n. at case— conditions,” impact "working have Again, But there is "sure” about it. might specific hence fall under the definition of has not made this claim and "grievance” 7103(a)(9). pages See 857-858 majority support. no offers I note that under infra. majority’s apparent reasoning, very deci- particular adopt a sion to economic formula phrase 8. A that defines a statute term with grievable, be might because it at itself restrictive; generally "to mean” is include" "to future, implemented, some time if have generally expansive. description majority's The employment. some effect on There is no indi- employment” term "conditions of as "ex- cation that intended such decisions pansive,” 845, Maj. see is thus incorrect. arbitral review. majority 9. also notes that the definition of "grievance" "any relating also includes matter employment any employee," 5 U.S.C. 858 “personnel policies, ship entirety.” Railway to mean in its defined Southern

tively affecting OSHRC, 335, Cir.), (4th matters ... work- practices, and Co. v. 539 F.2d 339 ” § 7103(a)(14) 5 denied, 999, 525, conditions. cert. 429 97 50 ing U.S. S.Ct. Thus, added). even under the (emphasis (1976). interpreting L.Ed.2d 609 In statute, interpretation of the majority’s statute, Supreme same term in another regulations “griev- is a violation of explained Court that “the element of work § 7103(a)(9)(C)(ii)only to the ance” under ing encompasses conditions two subfactors: ” person- involves extent that such violation ‘surroundings’ and ‘hazards.’ Coming practices working or the policies nel Glass, 202, supra, 417 U.S. at 94 S.Ct. at employees. These are conditions Act). (interpreting Equal Pay 2232 i.e., not all plainly words of subsequently This court only limitation — noted that there is no grievable violations are “surroundings” and “hazards” fall within —and was inserted that such limitation indication meaning “working labor relations inadvertently. conditions,” Airlines, Laffey v. Northwest Inc., 429, (D.C.Cir. 567 F.2d 452 n. 153 suggestion that majority’s footnote 1976),and in the FLRA are dealing we with something have to do Circular A-76 a “labor relations” act. With reference to practices in- personnel policies or “working the term must, yet conditions” anoth then, (if It be fitted substantial.10 act, er other circuits have held phrase “matters anywhere) under the ... term refers to the “environmental area in affecting working conditions.” But decision, employee customarily goes which an it about tracting-out even when results daily his tasks.” jobs, necessarily a Columbia Gas Penn in a loss of is not Marshall, sylvania, Inc. affecting working conditions of v. sion (3d Cir.1980); employees. ordinarily Railway, the term 916 While Southern su broadly “working pra, conditions” is to be inter- 539 F.2d at 339. There is no indica preted, Independent “working Federation tion that the term see conditions” in (which Flight Attendants v. Trans World Air- the statute at issue here was used lines, Inc., (8th Cir.1981), F.2d by Congress years several after the Com decision, specific it “has a meaning ing presumably nevertheless ... Glass knowl relations,” language edge meaning assigned industrial to those Brennan, Corning Court) Glass Works v. 417 words intended have a 2223, 2232, different, U.S. meaning S.Ct. much broader than it (1974), clearly enjoys L.Ed.2d means “some- in other labor relations statutes thing employment passed less than the by Congress.11 relation- majority Supreme 10. Department asserts that even if the 11. The relies on of Defense (D.C.Cir. 1982), interpretation "working Court’s 685 F.2d 641 as sanc conditions” tioning phrase (see ) a “broad” construction of the applies, comply failure to with the infra employment” "conditions of case, however, in the Act. That guidelines Circular’s substantive economic proposals involved union relat making contracting-out decisions would never- automobiles, registration employee "undoubtedly theless fall under the umbrella of (2) provision goods and of certain consumer personnel policies practices.” Not even the employees post exchanges. in overseas Both suggested in this case has that sub- provisions clearly per fall within the stantive criteria are transmuted practices procedures, sonnel and and neither “personnel by policies practices” into virtue remotely even agement right. interferes with reserved man they may point of the fact that at some have impact employ- some sort of on the continued unpersuaded by majority's I am flat asser- particular employees. surprisingly, ment of Not Congress' tion—it is more—that defini- majority support no offers whatever for this "working tion of ply conditions” in one statute sim- extraordinarily reading. Congress broad Had apply" Noting "does not in another statute. employment" intended the term "conditions of Congress did not elaborate on its definition "anything to include which has or at some legislative history, in the statute’s impact time in the have future an on the em- just presumes that it meant some- must have ployment employee," easily of an it could have thing different in this statute than it meant said so. It did not. phrase when it used the in other stat- identical argued, analogy on to the to see be is difficult what sort of might It violation of (NLRA), Act Labor Relations Circular A-76 could have on National effect do fall within the working decisions opposed conditions —as to the employment.” In one employment term “conditions continued the—of Paper Fibreboard Products case, employees. governs NLRA unit Circular NLRB, Corp. 203, 210, when S.Ct. regarding agencies sions should con- (1964), 398, 402, Su- out; 13 L.Ed.2d specify tract it does not the internal interpreted the term —which preme personnel Court policies im- which would is not defined in NLRA —to include plement such conceivably decisions. It However, in contracting-out. the Federal could result an em- termination of NLRA, Act, unlike the Labor Relations ployee, but little would have or no effect on Congress presumably was aware of conditions workplace. in —which Paper and Glass Corning both Fibreboard strictly to define the term D. —chose only per- it much narrower fashion: means FLRA apparently recognizes itself policies practices sonnel and and matters that some claimed violations of the Circular affecting “working conditions.” The mean- non-grievable, will turn out in- be but statute, to a in one attached term sists that each claimed violation must it, Congress defined irrele- where has not first go instance arbitrator.13 Un- meaning its in another vant statute approach, der that the arbitrator would de- has defined it. Congress where It is grieva- cide whether or not the violation is conditions, phrase working not conditions ble, subject to FLRA review.14 The FLRA employment, which acts to narrow the flatly supply any has refused to guidance grievances scope of under the FLRA.12 (if parts any) as to which it Circular might regulation grievable. violation in- thinks be Since a The EEOC grievable sought guidance such only petition volved in this case would be its reconsideration,15 to the extent it affected the environmental finding but work, employees request conditions under which it presented no “extraordina- plausible explanation the most applied utes. But for the similar to those Federal courts in legislative private labor-management lack of discussion in the materials is sector relations.” 5 Thus, 7122(a). majority’s its assumed that use of the words construc- "working managerial every tion assures that conditions” —words that it had used decision with out,” previously Supreme "contracting recog- questioned, which the Court if made, definite, ultimately specialized meaning agency, nized have practically unnecessary but arbitrator labor relations field—made it real free of review. pages reports waste additional its committee illuminating the obvious. explained request its for clarifica- that, contrary majority's I note must requesting tion in letter reconsideration: assertion, grievances I do not ] "maintain! example, For OMB Circular A-76 and other involving surroundings are restricted to claims regulations concerning laws and Maj. n. hazards.” See at 18. On the con- contracting procedures out contain for the trary, requires bargaining the statute at issue guidance management in the technical as- (2) "personnel policies," personnel over pects contracting directly out employment do not “practices,” affecting as well as “matters ... affect conditions of .... 7103(a)(14). working conditions.” U.S.C. § seems clear to [I]t us Union issue, not, face, on its limited to condi- would, pointed supra, 13. That out submit employment tions of .... Since the EEOC project mandatory each work contracted out to many no contracts with direct or indirect negotiation, purely violation elective impact employment conditions of bar- negotiation provided 7106(b)(1). for in members, gaining asking unit we are explain to FLRA in what fashion OMB Circu- 14. FLRA review of an is regula- arbitrator’s decision lar A-76 and other laws and judicial very ordinary concerning contracting to of arbi- similar review tions out fall within may only tral It an awards. set aside award on ambit of the of the grievance and the “(1) grounds: contrary machinery two law, rule, it because is resolution under the regulation; grounds or or on other Statute. sought prevent. is not circumstances,” curtly specifically it.16 It denied ry construction, ev- Hence, the FLRA’s happen. under to visualize what will difficult Circular, the alleged violation the ery grievance, claiming file a of union can provide is to SUB- which purpose basic technical standards of the Circu- one of the de- guidance STANTIVE conditions) (wholly working lar unrelated to contracting-out, must regarding cisions complied with. as to was not The claim arbitrator. go to an particular project go must to an arbi- cavalier, conclusory treat- FLRA’s trator, case-by-case on a will who basis request can legitimate the EEOC’s ment of Assuming evaluate it. the arbitrator that disclo- implicit admission as an be seen law, correctly grievance the the will follows might parts the it considers be sure of excep- denied. The union then will file be an ex- amount to such grievable FLRA, tions to the award with the elementary managerial au- treme denial or, drawing experience on the months — perfectly as to make it obvious thority Board, the Labor Relations even National plain is a violation its construction may deny the FLRA the ex- years later,— The same expressed by Congress. intent appeals ceptions. Review the court of respect can reached conclusion be may follow.17 adopted by the the construction grievance eventually the de- Even if is majority’s assures here. The construction nied, affirmed, every managerial pro- and that denial is decision with longed litigation will will have cast a over “contracting-out,” questioned, if ul- cloud made, agency, decision, timately by not but agency’s sub- arbitrator, very limited by an delay, jected the decision to considerable nega- complete This results a review. and wasted valuable assets an Congress. expressed by the intent tion of essentially frivolous claim. This extraordi- nary potential litigation for vexatious will pro- interpretation grievance significantly infringe upon management’s offers the union a source of cedure fertile specifically designated right con- delaying to make weapons obstructing or decisions, majority’s tracting-out tracting-out situation decisions.18 The 7123(b).) 16. Authority request doubting does finds that such a under 5 U.S.C. Without "extraordinary good establish not circumstances” it faith I note that should warranting required attempt Congress by reconsideration under later to thwart the will of Authority’s 2429.17 of the Rules and away section Regulations. asking whittling specifically reserved Rather, Agency in essence through case-by-case the use arbi- Authority arbitrability de- tration, make may do there be little the courts can specific in the absence of a fac- terminations policy forcing The FLRA’s all correct it. tual context. To the extent that an arbitrabil- alleged ultimately violations—whether found future, may Agen- ity question arise in grievable go not—to an arbitrator course, may, cy proce- avail itself of may effectively first instance shield future set dures forth in section 7121 of the Statute plainly sions inconsistent with the will Con- questions. for the resolution of such gress. Locals, AFGE, Nat’l Council 10 F.L. of EEOC (Mar. 1983) omitted) (footnote R.A. No. possible explains 18. The EEOC its brief reconsideration). (order denying consequences of this kind of substantive review: governed appeals by employee challenge in the court of could 17. Review [A]n 7123(a), grants agency’s arguing to: review decision underlying comparative analysis that the cost [a]ny person aggrieved by any order of final — of the standards set forth [one in the Circular] other than an order under arbitration, If the issue (involving was flawed. went to section 7122 this title an arbitrator), analysis an arbitrator could decide order in- award unless the inadequate guide- under practice an unfair labor under section [Circular’s] volves title____ justify lines ... therefore did of this Thus, added.) Agency’s Congress specifically conclusion that (Emphasis ac- commercial tivity question approving disap- performed FLRA actions could be removed most judi- inexpensively private prdving most arbitral awards direct source. The ulti- (Judicial ruling sustaining be avail- mate result could be a review. review still cial claim, judicial requiring employee's the FLRA if seeks enforcement the EEOC to able Con- comply fails to construction thus STANCILL, Raymond Allyson A. B. Ke- Chapter “be in- gress’ admonition fauver, Representative Personal terpreted in a manner consistent with Kefauver, Estate John William De- requirement of an effective and efficient ceased, Appellants § 7101(b). government.” 5 U.S.C. CO., POWER POTOMAC ELECTRIC IV. Conclusion Corporation. A recognized by All of the above No. 82-1091. union; goal incorporate apparent was to Appeals, United States Court (over contracting-out criteria District of Columbia Circuit. management may which neither it nor bar- Argued Nov. 1982. gain), agree- into the collective Decided Oct. ment, make grievable which would them hence and them to arbitral pursuit

review. The union’s of this case is

utterly inexplicable other basis.19 the majority

Yet the FLRA and hold that

contracting out and other reserved griev- covered already are mechanism, processes and that

ance agency making

and criteria used

contracting-out determinations be re- must FLRA

viewed arbitrators

through that mechanism. For the reasons above, forth my

set it is such view that

holding completely contrary lan- to the statutes,

guage drastically specific statutory

undercuts the out,

management to contract and effective-

ly guts the specific reserved limitations Congress placed agency's duty on the bargain and the FLRA.

I accordingly dissent. law, already grievable reconsider its determinations lar why are as a matter of conducting time, comparative effort, after another cost would the union waste its and mon- analysis. ey pursuing proposal first the contract Reply Brief for Petitioner at 3-4. Under eventually now this action? Even if statute, majority’s construction of the avoidance agrees proposal would contradict —which depends good greatly of this scenario on the which, the intent of even under subsequently holding faith of the FLRA in such construction, majority’s agency obvious- direct review of substantive decisions to non- ly required is not to do—the union’s remedies is, however, grievable. There are, violations Circular under the possi- decision under review which rules out the construction, majority’s exactly the same. It bility up reviewing that the FLRA wind all "bargaining" seems absurd to talk of over a grievance proceedings. such determinations in majority which the believes will im- pose If, cost on claims, no and confer no bene- entirely as the it is obvi- employees. fit on the ous from the statute violations of the Circu-

Case Details

Case Name: Equal Employment Opportunity Commission v. Federal Labor Relations Authority, American Federation of Government Employees, Afl-Cio, Etc., Intervenor

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 21, 1984

Citation: 744 F.2d 842

Docket Number: 82-2310

Court Abbreviation: D.C. Cir.