NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1309 v. DEPARTMENT OF THE INTERIOR ET AL.
No. 97-1184
Supreme Court of the United States
Argued November 9, 1998—Decided March 3, 1999
526 U.S. 86
*Tоgether with No. 97-1243, Federal Labor Relations Authority v. Department of the Interior et al., also on certiorari to the same court.
Gregory O‘Duden argued the cause for petitioner in No. 97-1184. With him on the briefs was Barbara A. Atkin.
David M. Smith argued the cause for petitioner in No. 97-1243. With him on the brief was James F. Blandford.
Irving L. Gornstein argued the cause for the Department of the Interior in both cases. On the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Underwood, Jonathan E. Nuechterlein, William Kanter, Robert M. Loeb, and Sushma Soni.†
The Federal Service Labor-Management Relations Statute requires federal agencies and the unions that represent their employees to “meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement.”
I
Congress enacted the Federal Service Labor-Management Relаtions Statute (Statute or FSLMRS) in 1978. See
In 1985 the Authority began to answer some of these questions. It considered a union‘s effort to force midterm negotiations about a matter the basic labor contract did not address, and it held that the Statute did not require the agency to bargain. Internal Revenue Service, 17 F. L. R. A. 731 (1985) (IRS I).
The Court of Appeals for the District of Columbia Circuit, however, set aside the Authority‘s ruling. The court held that in light of the intent and purpose of the Statute, it must be read to require midterm bargaining, inasmuch as it did not create any distinction between bargaining at the end of a labor contract‘s term and bargaining during that term. National Treasury Employees Union v. FLRA, 810 F. 2d 295 (1987) (NTEU). On remand the Authority reversed its earlier position. Internal Revenue Service, 29 F. L. R. A. 162, 166 (1987) (IRS II). Accepting the D. C. Circuit‘s analysis, the Authority held:
“[T]he duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not addressed in the [basic] agreement and were not clearly and unmistakably waived by the union during negotiation of the agreement.” Id., at 167.
The Fourth Circuit has taken a different view of the matter. It has held that “union-initiated midterm bargaining is not required by the statute and would undermine the congressional policies underlying the statute.” Social Security Administration v. FLRA, 956 F. 2d 1280, 1281 (1992) (SSA). Nor, in its view, may the basic labor contract itself impose a midterm bargaining duty upon the parties. Department of Energy v. FLRA, 106 F. 3d 1158, 1163 (1997) (holding unlawful a midterm bargaining clause that the Federal Service Impasses Panel had imposed upon the parties’ basic labor contract).
In the present suit, the Nationаl Federation of Federal Employees, Local 1309 (Union), representing employees of the United States Geological Survey, a subagency of the Department of the Interior (Agency), proposed including in the basic labor contract a midterm bargaining provision that said:
“The Union may request and the Employer will be obliged to negotiate [midterm] on any negotiable matters not covered by the provisions of this [basic] agreement.” Department of Interior, 52 F. L. R. A. 475, 476 (1996).
The Agency, relying on the Fourth Circuit‘s view that the Statute prohibits such a provision, refused to accept, or to bargain about, the proposed clause. The Authority, reiterating its own (and the D. C. Circuit‘s) contrary view, held that the Agency‘s refusal to bargain amounted to an unfair labor practice. Id., at 479-481. The Statute itself, said the Au-
The Fourth Circuit set aside the Authority‘s order. 132 F. 3d 157 (1997). The court reiterated its own view that the Statute itself does not impose any midterm bargaining duty. Id., at 161-162. That being so, it concluded, the parties should not be required to bargain endterm about including a clause that would require bargaining midterm. The court reasoned that once bargaining over such a clause began, the employer would have no choice but to accept the clause. Were the employer not to do so (by bargaining to impasse over the proposed clause), the Federal Service Impasses Panel would then inevitably insert the clause over the employer‘s objection, as the Impasses Panel (like the D. C. Circuit) believes that a midterm bargaining clause would merely reiterate the duty to bargain midterm that the Statute itself imposes. Ibid.
We granted certiorari to consider the conflicting views of the Circuits.
II
We shall focus primarily upon the basic question that divided the Circuits: Does the Statute itself impose a duty to bargain during the term of an existing labor contract? The Fourth Circuit thought that the Statute did not impose a duty to bargain midterm and that the matter was sufficiently clear to warrant judicial rejection of the contrary view of the agency charged with the Statute‘s administration. SSA, supra, at 1284 (stating that “Congress has directly spoken to the precise question at issue,” and quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984)). We do not agree with the Fourth Circuit, for we find the Statute‘s language sufficiently ambiguous or open on the point as to require judicial deference to reasonable interpretation or elaboration by the agency charged with its execution. See id., at 842-845; Fort Stewart Schools v. FLRA, 495 U. S. 641, 644-645 (1990).
The D. C. Circuit, the Fourth Circuit, and the Authority all agree that the Statute itself does not expressly address union-initiated midterm bargaining. See NTEU, supra, at 298; SSA, supra, at 1284; Brief for Petitioner FLRA in No. 97-1243, p. 18. The Statute‘s relevant language simply says that federal agency employer and union representative “shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement.”
The Agency, here represented by the Solicitor General, argues that in context, this language must exclude midterm bargaining. We shall explain why we do not agree with each of the Agency‘s basic arguments.
First, the Agency makes a variety of linguistic arguments. As an initial matter, it emphasizes the words “arriving at” in the Statute‘s general statement that the parties must bargain “for the purposes of arriving at a collective bargaining agreement.” This statement tends to exclude midterm bargaining, the Agency contends, because parties engage in midterm bargaining, not for the purpose of arriving at, but
Further, while the Agency acknowledges that there is a duty to bargain midterm in the private sector, see NLRB v. Jacobs Manufacturing Co., 196 F. 2d 680 (CA2 1952), it argues that this private-sector duty is based upon language in the National Labor Relations Act (NLRA) that is different in significant respects from the language in the Statute here. The Agency explains that the NLRA defines private-sector collective bargaining to include (1) negotiation “with respect to wages, hours, and other terms and conditions of employment, or [(2)] the negotiation of an agreement, or any question arising thereunder.”
In our view, these linguistic arguments, while logical, make too much of too little. One can easily read “arriving at a collective bargaining agreement” as including an agreement reached at the conclusion of midterm bargaining, particularly because the Statute itself does no more than define the relevant term “collective bargaining agreement” in a circular way—as “an agreement entered into as a result of colleсtive bargaining.”
Second, the Agency—like the Fourth Circuit—contends that the Statute‘s policies demand a reading of the statutory language that would exclude midterm bargaining from its definition of “collective bargaining.” The availability of midterm bargaining, the Agency argues, might lead unions to withhold certain subjects from ordinary endterm negotiations and then to raise them during the term, under more favorable bargaining conditions. A union might conclude, for example, that it is more likely to get what it wants by presenting a proposal during the term (when no other issues are on the table and a compromise is less likely) and then negotiating to impasse, thus leaving the matter for the Federal Service Impasses Panel to resolve. The Agency also points out that public-sector and private-sector bargaining differ in this respect. Private-sector unions enforce their views through strikes, and because they hesitate to strike midterm, they also have no particular incentive to bargain midterm. But public-sector unions enforce their views through compulsory arbitration, not strikes. Hence, the argument goes, public-sector unions have a unique incentive to bargain midterm on a piecemeal basis, thereby threatening to undеrmine the basic collective-bargaining process. See, e. g., SSA, 956 F. 2d, at 1288-1289.
Other policy concerns, however, argue for a different reading of the Statute. Without midterm bargaining, for example, will it prove possible to find a collective solution to a workplace problem, say, a health or safety hazard, that first appeared midterm? The Statute‘s emphasis upon collective bargaining as “contribut[ing] to the effective conduct of public business,”
Third, the Agency argues that the Statute‘s history and prior administrative practice support its view that federal agencies have no duty to bargain midterm. The Statute grew out of an Executive Order that previously had governed federal-sector labor relations. See Exec. Order No. 11491, 3 CFR 861 (1966-1970 Comp.), as amended by Exec. Order Nos. 11616, 11636, and 11838, 3 CFR 605, 634, 957 (1971-1975 Comp.). In support, the Agency cites a case in which an Assistant Secretary of Labor, applying that Executive Order, dismissed an unfair labor practice complaint on the ground, among others, that a federal agency need not bargain over midterm union proposals. Army and Air Force Exchange Serv., Capital Exchange Region Headquarters, Case No. 22-6657(CA), 2 Rulings on Requests for Review of Assistant Secretary of Labor for Labor-Management Relations 561-562 (1976) (not reviewed by the Federal Labor Relations Council, predecessor to the Authority); see IRS I, 17 F. L. R. A., at 736-737, n. 7 (finding, based upon this decision, that there was no obligation to bargain over midterm union proposals under the Executive Order). A single alternative ground, however—in a single, unreviewed decision from before the Statute was enacted—does not demonstrate the kind of historical practice that one might assume would
The Agency also points to a Senate Report in support of its interpretation of the Statute. That Report speaks of the parties’ “mutual duty to bargain” with respect to (1) “changes in established personnel policies proposed by management,” and (2) “negotiable proposals initiated by either the agency or [the union] . . . in the context of negotiations leading to a basic collective bargaining agreement.” S. Rep. No. 95-969, p. 104 (1978) (emphasis added). This Report, however, concerns a bill that contains language similar to the lаnguage before us but was not enacted into law. According to the D. C. Circuit, at least, any distinction between basic and midterm bargaining that is indicated by this passage “did not survive the rejection by Congress of the Senate‘s restrictive view of the rights of labor and the importance of collective bargaining.” NTEU, 810 F. 2d, at 298. In any event, the Report‘s list of possible occasions for collective bargaining does not purport to be an exclusive list; it does not say that the Statute was understood to exclude midterm bargaining; and any such implication is simply too distant to control our reading of the Statute.
Fourth, the Agency and the Fourth Circuit contend that the “management rights” provision of the Statute,
Subsection (a) of the management rights provision withdraws from collective bargaining certain subjects that it reserves exclusively for decision by management. It specifies, for example, that federal agency “management official[s]” will retain their authority to hire, fire, promote, and assign work, and also to determine the agency‘s “mission, budget, organization, number of employees, and internal security practices.”
Subsection (b), however, permits a certain amount of collective bargaining in respect to the very subjects that subsection (a) withdrew. Subsection (b) states:
“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 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.”
§ 7106(b) (emphasis added).
The two subsections of the management rights provision, taken together, do not help the Agency. While the provision contemplates that bargaining over the impact and implementation of management changes may take place during the term of the basiс labor contract, subsection (b) need not be read to actually impose a duty to bargain midterm. The italicized clause, “[n]othing in this section shall preclude,” indicates only that the delegation of certain rights to man-
The upshot of this analysis is that where the Agency and the Fоurth Circuit find a clear statutory denial of any midterm bargaining obligation, we find ambiguity created by the Statute‘s use of general language that might, or might not, encompass various forms of midterm bargaining. That kind of statutory ambiguity is inconsistent both with the Fourth Circuit‘s absolute reading of the Statute and also with the D. C. Circuit‘s similarly absolute, but opposite, reading. Compare SSA, 956 F. 2d, at 1284, with NTEU, 810 F. 2d, at 301 (rejecting the Authority‘s position that there is no duty to bargain midterm on the ground that it is “contrary to the intent of the legislature and the guiding purpose of the statute“). Indeed, the D. C. Circuit‘s analysis implicitly concedes the need to make at least some midterm bargaining distinctions, when it assumes that the midterm bargaining obligation does not extend to matters that are covered by the basic contract. See id., at 296.
The statutory ambiguity is perfectly consistent, however, with the conclusion that Congress delegated to the Authority the power tо determine—within appropriate legal bounds, see, e. g.,
We conclude that Congress “left” the matters of whether, when, and where midterm bargaining is required “to be resolved by the agency charged with the administration of the statute in light of everyday realities.” Chevron, supra, at 865-866.
III
The specific question before us is whether an agency must bargain endterm about including in the basic labor contract a clause that would require certain forms of midterm bar-
The Authority says that it has determined, as a matter of its own judgment, that the parties must bargain over such a provision. Our reading of its relevant administrative determinations, however, leads us to conclude that its judgment on the matter was occasioned by the D. C. Circuit‘s holding that the Statute must be read to impose on agencies a duty to bargain midterm. See, e. g., Merit Systems Protection Bd. Professional Assn., 30 F. L. R. A. 852, 859-860 (1988) (midterm bargaining clause is negotiable because it “reiterates a right the Union has under the Statute“); 52 F. L. R. A., at 479 (in the instant suit, restating that same conclusion). The Authority did indicate below that even if it agreed with the Fourth Circuit‘s position that the Statute does not impose a duty to bargain midterm, the outcome in this litigation would be no different, as the Authority “‘has previously upheld the negotiability of proposals despite the absence of a statutory right concerning the matter in question.‘” Id., at 480 (quoting Department of Energy, 51 F. L. R. A. 124, 127 (1995), enf. denied, Department of Energy v. FLRA, 106 F. 3d 1158 (CA4 1997)). This explanation, however, seems more an effort to respond to, and to distinguish, a contrary judicial authority, rather than an independently reasoned effort to develop complex labor policies. Regardless, the Authority‘s conclusion would seem linked to the D. C. Circuit‘s basic understanding about the statutory requirements.
In light of our determination that the Statute does not resolve the question of midterm bargaining, nor the related question of bargaining about midterm bargaining, we believe the Authority should have the opportunity to consider these questions aware that the Statute permits, but does not compel, the conclusions it reached.
It is so ordered.
JUSTICE O‘CONNOR, with whom THE CHIEF JUSTICE joins, and with whom JUSTICE SCALIA and JUSTICE THOMAS join as to Part I, dissenting.
The Court today ignores the plain meaning of the Federal Service Labor-Management Relations Statute (Federal Labor Statute or Statute) and erroneously concludes that when an agency responds to a judicial decision by abandoning its own interpretation of a statute and adopting that of the judicial forum this Court should defer to the agency‘s revised position, rather than evaluate whether the revised interpretation renders, in fact, the most plausible reading of the statute. I respectfully dissent.
I
The Federal Labor Statute plainly does not impose a general duty on agencies to bargain midterm. See Social Security Administration v. FLRA, 956 F. 2d 1280, 1281 (CA4 1992). Whether the language of a statute is plain or ambiguous is determined “by reference to the language itself, the specific context in which that language is used, and the broader context of thе statute as a whole.” Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997).
Here, the language of the Federal Labor Statute, as well as the specific and broader contexts in which that language is used, demonstrates that the Statute is unambiguous. The Federal Labor Statute specifies a few instances where midterm bargaining is required, see
The Court suggests that, because a midterm bargaining agreement is an end agreement of negotiation, the duty to bargain may encompass midterm agreements as well. See ante, at 93. As the word “midterm” suggests, however, such agreements are only a “midpoint” in the term of the underlying collective bargaining agreement. Because such agreements do not stand alone but relate back to the primary collective bargaining agreement, a midterm agreement is most appropriately regarded as a modification of, or a supplement to, the primary agreement reached pursuant to the Federal Labor Statute. See, e. g.,
Section 7106(b) obligates an agency to bargain midterm over specified agency initiatives, such as the creation оf “procedures which management officials of the agency will observe in exercising any authority” under the Federal Labor Statute.
The Court reasons that
The Court‘s reliance on
That the Federal Labor Statute contemplates a single end agreement, and not supplementary agreements or modifications, is also demonstrated by a comparison of it to the National Labor Relations Act (NLRA), the Statute‘s private-sector counterpart. The duty to bargain, as defined in the NLRA, includes “the negotiation of an agreement, or any question arising thereunder.”
A comparison of the two statutes explains why a duty to bargain midterm was included in the NLRA but omitted from the Federal Labor Statute. Under the Statute, but not the NLRA, the Government must subsidize union negotiators. See
A duty to bargain midterm was also excluded from the Statute because, in the context of the no-strike regime of federal labor relations, it would leave the agency-employer at an unfair disadvantage. In the NLRA context, the union that wants to obtain a midterm modification or supplement from an employer who is dead set against it must pay the price of a strike that is costly to it and its members. In the context of the Federal Labor Statute, the union that wants to obtain a midterm modification or supplement need only bargain to an impasse and then hope that the Federal Service Impasses Panеl will give it all (or at least some) of what it has requested. Demanding unreciprocated additional benefits is cost free. Thus, a midterm bargaining requirement might motivate a union to “hold [a] matter off until the term agreement is done[,] . . . initiate the proposal as part of a single-issue negotiation,” and, if an impasse results, force the agency to arbitrate. Ferris, Union-Initiated Mid-Term Bargaining: A Catalyst in Reshaping Conflict Patterns, 5 Negotiation J. 407, 411-412 (Oct. 1989). Again, it is obvious that this incentive structure does not promote “effective and efficient” Government.
The FLRA argues, in the alternative, that even if the Federal Lаbor Statute does not impose a general obligation to
There is, moreover, no statutory source for a duty to bargain over contractual requirements to bargain midterm. Section 7117(a)(1) directs an agency to bargain over “matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation” but only “to the extent not inconsistent with any Federal law.” The FLRA has interpreted this section to impose a duty on agencies to bargain over only proposals relating to conditions of employment. See Brief for Petitioner FLRA in No. 97-1243, p. 37. It is not apparent, however, how bargaining over a contractual requiremеnt to bargain midterm is a “matte[r] . . . affecting working conditions.” See
II
Even if I agreed with the Court that the Federal Labor Statute is ambiguous with respect to the duty to bargain midterm, I would not defer in this suit to the FLRA‘s interpretation of the Statute pursuant to Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984).
We observed in Good Samaritan Hospital v. Shalala, 508 U. S. 402 (1993), that when an agency alters its interpretation of a statute, its revised interpretation may be entitled to less deference than a position consistently held. We explained:
“The Secretary is not estoрped from changing a view she believes to have been grounded upon a mistaken legal interpretation. Indeed, an administrative agency is not disqualified from changing its mind; and when it does, the courts still sit in review of the administrative decision and should not approach the statutory construction issue de novo and without regard to the administrative understanding of the statutes. On the other hand, the consistency of an agency‘s position is a factor in assessing the weight that position is due. As we have stated: ‘An agency interpretation of a relevant provision which conflicts with the agency‘s earlier interpretation is “entitled to considerably less deference” than a consistently held agency view.’ INS v. Cardoza-Fonseca, 430 U. S. 421, 446, n. 30 (1987). How much weight should be given to the agency‘s views in such a situation, and in particular where its shifts might have resulted from intervening and possibly erroneous judicial decisions and its current position from one of our own rulings, will depend on the facts of individual cases.” Id., at 417 (some citations and internal quotation marks omitted).
Here, the FLRA changed its position on the precise matter that we have been asked to consider—whether agencies have a duty to bargain midterm under the Federal Labor Statute—and did so in response to a judicial decision. Initially, the FLRA determined that the Statute did not impose a duty to bargain midterm, see Internal Revenue Service, 17 F. L. R. A. 731 (1985), but it came to the opposite conclusion after the D. C. Circuit rejected this reading of the Statute, see National Treasury Employees Union v. FLRA, 810 F. 2d 295 (1987) (holding the Statute required midterm bargaining); Internal Revenue Service, 29 F. L. R. A. 162, 166 (1987) (adopting D. C. Circuit‘s reading of the Statute). At the time it reversed course, the FLRA offered only a scant explanation for its sudden interpretive shift. It merely stated that it agreed with the D. C. Circuit‘s holdings and concluded, “based on the court‘s decision and in agreement with the Administrative Law Judge,” that the IRS had impermissibly refused to bargain over a midterm proрosal. Id., at 165-166, 168. The only apparent reason for the agency‘s shift in interpretation was the D. C. Circuit‘s decision. In this circumstance, the agency‘s interpretation of
The FLRA currently interprets the Federal Labor Statute to impose a duty on federal agencies to negotiate midterm those union-initiated proposals that are not covered in the term agreement unless the union has clearly waived its right to bargain midterm. See Brief for Petitioner FLRA in No. 97-1243, at 18-20; see Department of Navy, Marine Corps Logistics Base v. FLRA, 962 F. 2d 48, 56 (CADC 1992) (outlining FLRA position). This is not, however, the most plausible construction of the Statute. For the reasons previously discussed, there is no language in the Statute expressing a general duty to bargain midterm. Moreover, to the extent that the FLRA has codified exceptions to a generalized duty to bargain midterm; those exceptions are defined out of whole cloth; there is nothing in the text of the Federal Labor Statute that suggests limits on a duty to bargain midterm. For these reasons, even if there were some ambiguity in the Federal Labor Statute, I would hold that the agency‘s interpretation of the Federal Labor Statute is inferior to the natural, and most plausible, reading of that Statute—that there is no general duty to bargain midterm. See Good Samaritan Hospital v. Shalala, supra, at 417; INS v. Cardoza-Fonseca, supra, at 446-447, and n. 30. I respectfully dissent and would affirm the decision of the Fourth Circuit.