National Labor Relations Board Union v. Federal Labor Relations Authority

Before EDWARDS, STARR and D.H. GINSBURG, Judges. Circuit Concurring opinion filed Circuit Judges STARR and D.H. GINSBURG. HARRY T. EDWARDS, Circuit Judge:

In July 1985, the National Labor Rela- tions (the Board Union “Union”) petitioned the Federal Labor (the Relations Authority “FLRA”) to amend 5 C.F.R. 2423.5 (1987).1 The Union claimed that were inconsistent with 5 7117(c) U.S.C. (1982), and 7118 they preclude organizations from ob- taining unfair (“ulp”) reme- dies when agency duty violates its bargain. Under the regulations, when an good faith to bargain refuses over a union proposal on ground joined, The Union was both reference, below and on opinion shall mention the appeal, by Local 12 of the American Federation first petitioners. of these Employees, Government AFL-CIO. For ease “expedited” determination for an trammel implementation 7117(c).2 If the management negotiability. 5 statutorily protected agency's negotia- law Union’s claim of accepts federal conflict rights no regulation, rule or bility, then Government-wide unless union are available proposal. remedies accompanied refusal implementing change unilateral or threatened actual proce- negotiability appeals statutory the employment. conditions in following provision: the dure contain the and petition, the Union’s denied files an organization a labor Where appealed. to charge pursuant practice labor unfair legisla- text and that the we find Because in- subchapter which of this Part 7117(c) and U.S.C. history of 5 §§ tive issue, labor and the negotiability a volves claim, and be- the Union’s support not do this to pursuant also files organization with consistent are regulations the cause same for review petition part a Order Executive under followed practices issue, and the Authority Federal of the passage to (prior pro- not ordinarily will Counsel General Stat- Relations Labor-Management Service charge and practice unfair labor cess the interpre- FLRA’s ute), conclude simultaneously. for review petition from language tation circumstances, or- the labor Under permissible. derive which pro- under which for select petition ganization must deny the Union’s therefore We one Upon selection proceed. to cedure review. under action further procedure, I.Background suspended. ordinarily be will procedure regardless made be must Labor-Management selection Such Federal Service practice “Statute”), labor the unfair (the of whether Statute Relations federal a for imposes (1982), charge or the good faith Notifica- bargain first. to is filed duty a agencies negotiability issue anof representative made in be exclusive with the selection tion of employees’ bargaining about unit procedures propriate both time that writing at the U.S.C. employment. conditions invoked, served must be and have However, 7114(b)(2). 7103(a)(12), Region- appropriate Authority, on the propos- extend bargain does not duty both parties to all al Director trench implementation als whose nego- practice case labor unfair management agency’s reserved upon the in- solely which case. Cases tiability 7106; proposals or to rights, 5 U.S.C. § that allegation agency’s volve or law a federal with inconsistent does good bargain duty faith 5 U.S. regulation, rule or Government-wide be proposed matter to the extend contra- 7117(a)(2); proposals or to C. § involve do which bargained there for which regulation or rule vene a in con- changes contemplated or actual need, U.S.C. compelling exists may employment ditions of agency refuses (b). 7117(a)(3), If an part. filed union over a negotiate added).3 A (emphasis 5 C.F.R. § impair the adoption would that its ground appears in passage substantially identical management protected statutorily which regulations, Part 2423 or law federal conflict rights or proceed- procedures sets out then regulation, rule Government-wide 2423.5. 5 C.F.R. ings. See appeal organization labor 7117(a)(3), See 5 Government-wide. (b). procedure separate specifies Statute 2.The agen- may appeal an organization a labor “compelling exists cy’s allegation that there portion sentence italicized 3.The regulation is not a rule need" at issue. regulation here July 1985, the Union petitioned (b) If during the investigation of a FLRA to amend parallel these two regula- charge that an agency has failed to bar- tions. The Union claimed that the final gain in good faith the agency alleges as a sentences of were inconsist- defence that the duty bargain in good ent with the preclud- faith does not extend to the matter ed the FLRA granting from ulp remedies sought to be bargained, the agency will organization a labor in cases where an be instructed to submit allegation good faith, but mistakenly, re- writing to the union. If the union files a fused to over proposal because it timely appeal of the allegation, a com- thought the proposal nonnegotiable. plaint on the unfair practice charge Petition for Rules, Amendment of reprint- will be issued and an required, answer ed in Record Appendix (“R.A.”) 5, 10-13. but further proceedings concerning the The Union considered the unavailability of charge will be sus- ulp remedies in these sig- circumstances a pended pending decision on the duty to nificant deprivation of employee rights un- bargain issue. der the First, Statute. the Union claimed (c) If any time after issuance of the good-faith even a refusal to negotiate complaint the agency alleges as a de- is an unfair practice. labor Second, the fence that duty the to bargain good pointed out that the empow- Statute faith does not extend to the matter ers FLRA, if it determines that an sought to be bargained, will practice unfair labor has committed, be instructed to submit allegation its not merely to parties order the bargain writing to the union. If the union files a over a proposal, contested but also to rene- timely appeal of the allegation, further gotiate any agreement the parties may proceedings concerning the unfair labor have reached include agree- in that practice charge will be suspended pend- ment provisions certain with retroactive ef- ing decision on the duty bargain issue. fect. 5 U.S.C. 7118(a)(7)(B). Although (d) Upon issuance of the Authority’s de- the FLRA in its might discretion rarely cision on duty to bargain issue, the grant such relief in response to an agency’s proceedings on the unfair practice labor erroneous good-faith but allegation of non- case will be resumed in a manner consist- negotiability, the Statute does not rule out ent with that decision. remedy, a the Union contended, and Petition for Amendment of Rules, R.A. 8. therefore ought to September On permit, 23,1986, if require, denied the imposition of petition, Union’s finding contract terms its proposed with retroactive effect when revision “contrary language leg- declines to discuss what islative history of the FLRA later Statute ascertains to well as be negotiable Authority precedent.” proposal. Decision on Petition for Rules, Amendment of 23 F.L.R.A. No. Accordingly, the Union requested the 57 (Sept. 23, 1986), reprinted in R.A. 1. FLRA to delete 5 C.F.R. 2423.5 and The Union appealed from the FLRA’s deci- 2424.5 and to substitute the following pro- sion pursuant to 5 7123(a). U.S.C. § Rath- posed regulation: er than ask this court to substitute its (a)If a union files an unfair prac- original proposal for 5 C.F.R. 2423.5 and tice charge agency’s failure to toto, 2424.5 however, the Union now bargain matter, over a and the has union requests that we order the FLRA to delete already filed an appeal of the agency’s the final sentence of each of regula- those allegation that the duty does tions. not extend to matter, a complaint shall be issued and the agency required Analysis II. answer, but further proceedings con- A. Jurisdictional Issues cerning the unfair charge will be suspended pending on decision The FLRA contends that this court lacks duty to bargain issue. jurisdiction to hear the appeal Union’s for (D.C.Cir. FCC, F.2d 543 sic, Inc. v. deni- argues that its First, it two reasons. denied, U.S. cert. 1958), does not consti- Union’s al of the (1959), this re 50, 4 L.Ed.2d U.S. of purposes order” “final tute attacks distinguished indirect on peatedly appealable. thus, and, 7123(a) C. § initi validity substantive the Union’s avers that Second, pro their sixty days after more than ated dismissed appeal proce on their like mulgation from attacks dif- petitioned agency action for also noted It has lineage. dural requests now relief fers from with the varies scope of appellate contentions. reject We appeal. To avoid attack. substantive nature principally case in this appeal The Union’s offer a score, we statutory au- confusion further challenge to concerns holdings. summary prior brief promulgate the FLRA thority such, the Union’s As regulations. disputed regulations may be at An it involve untimely, nor does is not appeal statutory limi ways once in two tacked one advanced position changed First, party expired. period has tations FLRA. before challenge reg standing possesses who ground directly on the ulations Ap- the Union’s Timeliness 1. statu excess issuing agency acted peal A them. promulgating authority in tory must be raised, the FLRA Final orders might be challenge sort days. sixty within in an enforce pealed way of example, defense of promulgation 7123(a). The Thus, suppose proceeding.4 ment a final regulations constitutes un prohibiting final regulation rules a adopted of the marking commencement women; suppose, order representing from ions AFGE v. period. limitations sixty-day unchal further, regulation went that (D.C.Cir.1984). 143, 144 FLRA, pe 750 F.2d statutory limitations during the lenged to seeks amend regulations General riod; suppose finally, January form on against final a union charges were issued filed Counsel 3482, 3506-07, 3512 Fed.Reg. collec negotiated 45 1980. a to execute for failure that, while argues (1980). The FLRA agreement5 because bargaining tive peti- to the Union’s respond coverage of the obliged to to refused extend employer (1982),its 553(e), 7134 Under tion, employees. see 5 to female agreement final order appealable clearly circumstances, is not response union could such Un- 7123(a). Because the regulation on validity challenge on an attack FLRA were appeal appears employer ion’s years be- seven adopted almost uncon regulations regulation went if that relying, even filed, sub- statutory the FLRA appeal was applicable throughout fore that tested be barred should said judicial review As this court period. mits that limitations of limitations. statute sixty-day by the Music: Functional regulations, to rules applied As set- ignores the The FLRA’s contention restricting judicial limit statutory time long line of a this circuit. of tled law applicable [agency] action review of Mu- Functional stretching back cases con- the rule's notice of aggrieved parties on FCC, 978 See, F.2d e.g, 610 Geller v. Eagle-Picher In- omitted); (citation tent.”) applied 1979) (“Had (D.C.Cir. the Commission cf. (D.C.Cir. EPA, dus., F.2d [which 759 the 1972 Inc. v. of one or more statutory during limita of judicial review 1985) (outlining when were not attacked period some individu of period] to the detriment a limitations tions outside be allowed will rule position to al, clearly been in a have he would limitations ripe challenge within so."); doing RCA see also complain the order of period). FCC, Communications, 758 F.2d v. Inc. Global 722, statutory ("Although (D.C.Cir.1985) Security See, Social e.g., National Council judicial review limitations time Locals, F.L.R.A. No. Operations Field Admin. self-evidently the cal jurisdictional, action are (1986). agency has decided until the does not run endar puts reasonably question in manner that cut off directly review other than the agency’s lack order promulgating a rule. It does not authority to issue that regulation may be foreclose subsequent brought examination of a petitioning the agency for rule where properly brought before this amendment or rescission and then appeal- court for review of ing further [agency] ac- denial of petition. For exam- tion applying it. For ple, unlike Gage ordinary ad- v. Atomic Energy Commis- judicative orders, sion, F.2d (D.C.Cir administrative rules 1973), this and regulations capable first noted of continuing “petitioners retain application; right limiting right initiate rulemaking review before the AEC by formally the underlying proposing rule would effectively promul- gation deny many parties expanded ultimately rules desire,” affected and then said in a rule an opportunity question footnote: va- lidity. Petitioners do have right petition the Commission for institution of a rule- 274 F.2d at 546.6 making proceeding under 10 C.F.R. The second method of obtaining judicial 2.803_ 2.802 and Denial of of agency once the limi- petition would constitute a final order period tations has run is reviewable by this court. agency for amendment or rescission of the 479 F.2d at 1222 & n. 27. appellate An regulations and then to appeal the agency’s court’s review in kind, cases of this how decision. We have distinguished three ever, is limited to the “narrow issues as types of challenges appeal. by the denial the petition defined (a) petitioner’s A contention that regu- rulemaking,” and does not extend to a lation suffers procedural from some infir- challenge of the agency’s original action in mity, such as an agency’s unjustified refus- promulgating disputed rule. Profes al to allow parties affected to comment on sional Drivers Council v. Bureau Mo a rule issuing before form, it in final will tor Carrier Safety, 706 F.2d 1217 n. not be heard outside of the statutory limita- 2 (D.C.Cir.1983)(emphasis added); see also period. tions This court held in Natural Natural Resources Council Defense Resources NRC, Council v. Defense EPA, 824 1146, 1150 F.2d (D.C.Cir.1987)(en F.2d 595 (D.C.Cir.1981), that re- “[w]ith banc). Furthermore, review of an agency’s spect procedural to routine challenges decision not to promulgate a proposed rule made against those whom the agency is by the petitioner is extremely limited. See not proceeding to the regulation,” enforce WWHT, FCC, Inc. v. 656 F.2d id. at 603, day period “[t]he for seeking (D.C.Cir.1981). judicial review jurisdictional ... is in na- (c)Finally, a petitioner’s contention that ture and enlarged not be altered regulation should be amended or rescind- the courts.” Id. at 602. Countenancing ed because it with the statute conflicts such challenges, the reasoned, court would from which its authority is derives reviewa- on balance waste administrative resources ble outside of a statutory limitations peri- and unjustifiably impair the reliance inter- od. See Natural Resources Defense ests of those who conformed their conduct Council NRC, 666 F.2d at 603-04. Judi- to the regulation. contested Hence, the cial review of this sort is often said to court dismissed untimely proce- NRDC’s proceed misleadingly —somewhat —under dural objection to the Commission’s deci- the “arbitrary and capricious” standard, sion to promulgate final rules without a see, e.g., id. at challenges but to an period. notice-and-comment agency’s statutory authority giv- issue a (b) petitioner’s A regulation claim that a regulation en are assessed in a different suffers from some substantive deficiency manner than other allegations of “arbi- Although 6. Functional Music itself regulations, involved on those its rationale for entertain- appeal agency’s from an refusal to ing reconsider its petitioner’s challenge equally is applica- denial of a for rescission of the dis- ble to defensive attacks in proceed- enforcement puted regulations, rather than ings. direct assault misguided. FLRA’s is The assertion once agency action trary capricious” and If involved the FLRA’s refusal case lapsed. de- this We has period limitations rulemaking proceeding inaugurate a cases approach to such proper scribe concededly modify that it had II.B. Part infra. issue, authority we would statutory then charge that 5 C.F.R. The Union’s £2] to dismiss the Union’s suit indeed be bound with inconsistent 2424.5 are and 7123(c),8 the re- 5 U.S.C. because category third under this falls Statute requested appeal on would have dif- lief challenges, thus warrants and indirect that which asked the fered from is mis- The FLRA consideration. judicial gravamen provide. But the FLRA to this can suggesting that taken claim, both before the FLRA the Union’s inconsist- alleged this only consider should is lacked appeal, on FLRA success- representative ency if an exclusive authority to issue non- agency’s allegation fully appeals an exclusive unconditionally precluding FLRA, repre- if that obtaining ulp remedies representative from relief, if the requests also sentative good-faith refusal to bar- for an request, denies then Counsel General nonne- alleged to be gain subse- representative exclusive and if the appears un- Although the Union gotiable. Brief judicial review. quently seeks repairing this means for sure of the best scrutiny 7. at 17 n. Judicial for the objection of its deficiency, the heart alleged unavailable regulations is the contested reme- restriction on the FLRA’s —that this route, Coun- General via utterly inconsistent with power is dial to issue an sel’s decision jettisoned Statute and must —has order is not a final complaint FLRA addressed the same. mained FLRA, Turgeon v. hence unreviewable. Union’s responding this contention The Union (D.C.Cir.1982).7 F.2d admitted FLRA’s counsel petition, and the remaining availed itself of the least is at one in court that sub- consideration path judicial the Union renewed complaints that regulations; validity of the stantive us. properly before peal. The issue congressional contrary of a in the absence directive, foreclose prepared to we are not Review B. Standard of circum- under these to this court access 7123(c), decisions stances. Under in accordance subject to review Act, 5 Procedure the Administrative Novelty Union’s Alleged agen- set aside Courts Request Appeal found conclusions actions, findings, and cy amendment, the for petition In its statutory jurisdiction, “in to be excess its FLRA to substitute requested the limitations, of statu- short or authority, or 5 C.F.R. four-paragraph 706(2)(C). right.” 5 U.S.C. tory merely appeal, 2424.5. On 2423.5 and solely is this court question before the to order deletion this court asks the final statutory construction: one of regulations. The of both final sentence 2424.5 of 5 sentences C.F.R. Union’s that the FLRA contends intent, as congressional inconsistent has with the must be dismissed of the Statute text manifested the to consider opportunity not had regard to history? With its desires. changes the Union now part: 7123(c) provides in relevant 8. 5 U.S.C. which Drivers 7. The footnote Professional 2, refers, 1217 n. at see 706 F.2d the FLRA provides urged before objection has not No which contention; support for the FLRA’s no con- designee, Authority, shall or fact, as men- not much does so that footnote court, failure unless sidered reviewability Counsel’s of the General tion objection excused is neglect urge the practice com- an unfair refusal to issue extraordinary circumstances. plaint. such questions, Supreme Court legal particular standard to a facts, set of stated: “the courts respect must the interpretation judiciary is the agency authority Congress final has del- egated statutory

issues of construction responsibility for administering the statutory reject program.” must administrative constructions Id. at 1221-22. In situations, contrary which are congressional to clear because the court is not faced with court, “pure question intent. If a employing of statutory traditional construction,” statutory construction, tools of some ascer- deference is due the agency and the two-prong tains that Congress had an test of intention on Chevron applies: precise question issue, at that inten- First, tion is the law given always, and must be is question effect. whether Congress has directly spoken pre- Chevron U.S.A. Inc. v. Natural Resources question cise at issue. If the intent of Council, 837, 9, U.S. 843 n. Defense Congress clear, is that is the end 2778, 9, S.Ct. 2781 n. 81 L.Ed.2d 694 matter; court, for the as well as the (1984) (citations omitted). agency, give effect to the unambig- It is therefore clear that courts need uously expressed Congress. intent of If, defer to an agency’s reading of a congres however, the court Congress determines sional when, here, enactment that inter has not directly addressed precise pretation pure question raises “a of statu question issue, at the court does not sim- tory construction decide,” for the courts to ply impose its own construction on the rather than “question interpretation statute, as would be necessary that arises in each case in which agency absence of an administrative interpreta- required is apply legal to a [a standard] Rather, tion. if the statute is silent or particular set of facts.” INS v. Cardoza- ambiguous respect with specific — Fonseca, —, U.S. issue, question the court is (1987). 94 L.Ed.2d 434 This court has whether answer is based recently construed the mandates of Chev permissible construction of the statute. ron and Cardoza-Fonseca as follows: Chevron, 467 842-43, U.S. at 104 S.Ct. at The principal charge of a court in statu (footnotes 2781-82 omitted).5 tory construction is to ascertain congres 5 Cardoza-Fonseca, (who Justice Stevens sional intent. court, “If a employing tradi opinion also wrote the for the Court in Chev tional tools of ) strongly statutory construction, ascer ron interpretation indicates provision a statutory pure ques remains "a tains had an intention on the statutory tion of construction for the courts to precise question issue, is intention provision decide" even when at issue admits the law given and must be effect.” [Chev ambiguity. of some 107 S.Ct. at 1220-21. Thus, the ron, prong second 467 U.S. at 843 n. of the Chevron test is 104 S.Ct. at 2781 only applicable respect to circumstances n. In performing 9.] this responsibility, required when an is apply legal “courts may interpretation substitute their particular facts, standard to a set of when of a statute for whenev congressional unable discern intent employing after traditional tools of er they pure face ‘a question of statutory construction. construction for decide,’ the courts to rath Brock, UAW v. 816 F.2d & n. 5 er ‘question than a interpretation [in (D.C.Cir.1987). the agency required to apply which] [a legal particular to a standard] set Because the Union’s challenge to ” — facts.’ I & Cardoza-Fonseca, NS v. consistency 5 C.F.R. 2423.5 and —, —, U.S. 107 1225, 94 2424.5 with the Statute from they which L.Ed.2d (1987)(Scalia, J., concurring in purportedly derive raises an unadulterated result) (quoting op. majority at question 1220- of congressional intent, this court 21). The courts need not to agency defer must review the language Statute, opinions on “pure questions” of interpreta legislative its history, predecessor reg tion. In those circumstances, however, in ulations under Executive Order as which an agency is required to apply amended, a to determine whether the chai- noted, provides Statute congression- As the contravene lenged processing ulp clearly at for separately intent Congress’ If intent. al they must expedited then resolution of regulations, charges and the with the odds notwithstanding down, allegations nonnegotiabili- from appeals struck be If, however, 7117(c), contrary opinion. ty. See U.S.C. §§ How- determined, be cannot Congress’ explicitly intent ever, address does Statute interpre- the FLRA's to must defer then or question whether that inter- if we find of the Statute tation charges ulp under U.S.C. entertain should “permissible.” pretation allege an merely that 7118 that bargain what good faith to over refused in Concerning Ne- Intent Congressional C. negotiable a determined to be later was Appeals gotiability “it say does that The Statute proposal. 5 C.F.R. concluding sentences of The practice for an an unfair labor shall be deny la- categorically and 2424.5 negoti- or to consult agency ... to refuse agen- for an ulp remedies organizations bor organization a good in faith with labor ate to dis- refusal mistaken good-faith cy’s but chapter.” 5 U.S.C. by this required as its proposal because bargaining cuss 7116(a)(5). impose the Statute does And pro- on allegedly intrude adoption would good faith duty bargain in agencies a or offend prerogatives management tected negotiable proposals. all or rule or a Government-wide law federal states 7117(a). nowhere But the Statute refusal is agency’s regulation, unless agency’s good-faith an intimates than or contemplated “actual coupled with alleges to be subject it refusal to discuss employment.” changes in conditions nonnegotiable constitutes “refus[al] provisions these FLRA’s defense In- good faith.” negotiate consult petition reads the Union’s disposing of the reverse deed, might infer that one well entirety: is true. con- view, regulations are our expe- special, of a creation Certainly the language of sections sistent with negotia- to resolve appeals procedure dited Statute, spec- which and 7118 though it permits, least bility disputes at resolving ne- for separate ify procedures compels, the inference by no means labor gotiability and mistak- Congress intended also con- cases, They are respectively. not sub- nonnegotiability allegation of en history of the sistent with If, liability. ulp ject it to Congress indicates that which management claims, refusal “an actual which rejected provision considered but is in fact which a matter bargain over negotiability dis- all required would have [per- bargaining is for mandatory subject prac- in unfair labor putes to be resolved Brief practice,” an unfair proceedings. tice force] be scant there would then Petitioners practice remedies Unfair for re- a second route to establish reason to bar- appropriate refusal available nego- If negotiability. solving questions of (1) situations, such as where gain treat- expedited required by tiability issues accompanied negotiate is refusal determinations, ulp purposes of em- changes in conditions ment unilateral expedited treat- (2) given where an could have ployment; and Furthermore, if track. on the over a substan- fuses ment negotia- Authori- seeking expedite to one tially Congress identical was nego- strange determinations, determined to be previously it would be ty has bility disputes to under the Statute. tiable require or allow rath- two through channels way their of wind for Amendment Decision Petition what purpose of omitted). than one.9 (citations er Rules, R.A. 3-4 bargain- rapidly so that ity issues to resolved established It conceivable considered the FLRA ing proceed while could negotiabil- procedure appeals expedited allow 200 expedited intended to be an proce- the recalcitrant employer are less severe dure, might surmise, reasonably one was to they than could be under the Statute. The allow settlement preliminary issues Supreme Court held in H.K. Porter Co. v. of negotiability bargaining before a session NLRB, 99, 397 U.S. 90 821, S.Ct. 25 L.Ed. close, came to a without automatically sub- (1970), 2d 146 that remedial impos- orders jecting might an to what prove ing contract terms with retroactive effect exacting remedial measures if it asserted, exceed the authority of the National Labor good faith, in that certain subjects ought Relations Board. Statute, The contrast, in not be on the table. expressly allows remedies. This dis- standpoint public From the policy, this amply tinction would explain Congress’ de- reading of the equivocal Statute’s sire, text if indeed this was its purpose, to ex- would also make If sense. agen- federal clude from the class of unfair practic- labor cies risked the imposition retroactive es an agency’s good-faith refusal to bar- unfavorable contract terms they whenever gain over proposal ground on the negotiate refused to over a labor organiza- nonnegotiability, provide but to orga- tion’s proposal, they even if honestly be- nizations with protection some against lieved the subject nonnegotiable, they then agencies’ unjustified stalling by establish- powerful have incentive to bar- ing a mechanism to resolve negotiability gain, even if the FLRA rarely chose such a disputes with special swiftness. remedy. drastic incentive, This turn, foregoing The conjecture not inescap- might promote the erosion of those Nonetheless, able. wholly furnishes le- management rights protected by the Stat- gitimate bases, upon relied by the FLRA, ute, if agency bargained over argu- support the agency’s interpretation of an ably nonnegotiable proposal good faith; admittedly ambiguous statute. It there- lead to bad-faith stonewalling by suggests fore FLRA's management on the contested issue and are “based on a permissible construction of

perhaps further administrative sparring; Chevron, statute.” 843, U.S. at agencies induce to offer concessions on 104 S.Ct. at 2782. matters would make reluctantly ought legislative make, The forced history order of the Statute of- protect management their nothing prerogatives. repair fers the ambiguity in its separate, expedited negotiability ap- terms. The House initially Committee peals procedure might ported reasonably be a bill that would required have all attempt viewed as an to spare negotiability disputes to be handled in the agencies arguably among unfair choice way same ulp charges. 11,280, See H.R. tnese three evils. Cong., 95th 2d 7117, Sess. (1978), reprinted in Subcomm. on Postal possible This concern supplies also Person- a re- op sponse nel and Modernization to the Union’s contention the House Comm, on Post should look to decisions under the Service, Office Civil Legislative Cong., History Sess., National Labor Relations Act in determin- 96th 1st Labor-Manage- ing agency’s whether an refusal to Federal Service over negotiable Title VII ment constitutes Relations practice, pure however at 409- Civil Service Reform Act of (Comm.Print may 96-7) motives (1979) (“Legis. No. have Al- been. though a private employer’s refusal to ne- Senate bill did provide for a Hist.”). gotiate separate a mandatory subject of collec- appeals procedure. bargaining tive violate See S. Cong., National 95th 2d Sess. Act, Labor Katz, 7215(e)(3) Relations (1978), see NLRB v. Legis.Hist. reprinted 736, 743, 369 U.S. On floor, Representa- House (1962), L.Ed.2d consequences tive Udall introduced amendment to the However, more extreme sanctions. support there this view. nothing in the Statute or history

201 charges; only negotiate refusals to establishing ne- the bill Committee House ap- that now procedure accompanied by changes appeals were unilateral in gotiability Cong.Rec. 7117(c). 124 at 5 pears established-personnel policy, practice, an or Legis.Hist. at in (1978), reprinted 29,179 working affecting matter conditions were analysis, how- section-by-section His practices. as unfair labor processed See pro- of his terms ever, the merely restated 11,491, No. 3 868-69 Exec.Order C.F.R. shedding any amendment, without posed Legis.Hist. 1250-51; (1966-70 at Comp.), ulp proceedings. relationship to its light on 11,838, 957, 3 No. C.F.R. 960 Exec.Order Cong.Rec. 29,184 (1978),reprinted 124 See Legis.Hist. 1336, (1971-75 Comp.), at of Legis.Hist. other member 927. No at in Moreover, if the Federal Labor 1339.10 ne- proposed the commented Council, ruling negotiabili- aon Relations on the House appeals procedure gotiability within the appeal, found a matter to be ty adopted the Udall The House floor. bargain, it agency’s duty scope of amendment, Conference the House-Senate negotiable but did not the matter declared suit, as so the bill followed Committee See, e.g., relief. Feder- provide retroactive by both House passed was amended by President signed Technological Science & the Senate and al Aviation and negotiability Carter, separate and the FAA, Transp., Ass’n, Dep’t and NAGE law, any without procedure became peals (1978); Ass’n 723 International 6 F.L.R.C. congressional by its elucidation further Workers, Aerospace Lo- & Machinists Committee, or proponents, Conference Corps Air Marine Lodge 1859 and cal legislative or executive any member Facility, Air Rework Naval Station & branch. (1978). Point, N.C., 253 6 F.L.R.C. Cherry guidance remaining source of regulations preserve these The FLRA’s Ex- by as amended Order Executive system, the Executive Order features of provided a which ecutive Order or explicitly eliminated were ne- resolving public sector framework by by the modified passage of disputes prior to gotiability genesis, by in the course statements 11,491, 3 No. Exec.Order the Statute. See Order, by pri- or subsequent Presidential (1966-70 reprinted in Comp.), C.F.R. They itself. or decisions 11,838, Legis.Hist. No. 1244; at Exec.Order statutorily re- might be deemed therefore (1971-75 Comp.), reprinted C.F.R. grandfather provi- by the Statute’s quired Legis.Hist. Executive Order at 1336. 7135(b), merely the sion, 5 U.S.C. § Stat- the time when the place at system interpretation of “permissible” result for a provided enacted ute debated and was ambigu- Statute, given profoundly procedure separate appeals negotiability between ulp ous connection handling procedure nego- that refusals also contends The FLRA sentences that the final The FLRA maintains ulp “where continue incur sanctions and 2424.5 tiate of 5 C.F.R. exception negotiate substantially allowing to be by refusals refuses to charges "involve when processed Authority previ- one which identical to changes contemplated in conditions actual or employment.” negotiable under ously determined 23-25. for the FLRA at Brief for Amendment on Petition Decision Statute.” apparently mandated that provision This Rules, Although Union contests R.A. 4. “[p]olicies, 7135(b), which states U.S.C. regulations, length, see accuracy claim at of this some established procedures 21-25, no reason see Brief for Petitioners Orders Executive issued under decisions Orders spat, because no Executive to settle this in effect on ... as 11491 ... exception, required this thereunder or decisions chapter, shall remain effective date in its this issue did not raise because the effect until revised revoked force and full FLRA, exception, and because President, by specific superseded unless FLRA, only redound recognized by if by regulations or chapter or provisions of this thereby organizations, of labor benefit chapter." See pursuant to this issued decisions alleging injury to preventing Union from Devine, Coalition Federal/Postal/Retiree members. itself or its (emphasizing (D.C.Cir.1985) F.2d clause). grandfather significance of this appeals procedure and the mechanism for agree fo my with colleagues that the un- processing ulp charges.11 position ion’s in this court is the position advanced before In the Authority. view of the Statute’s As ambiguity sult, the legislative and I history’s am silence con constrained join not to in Part cerning the exclusivity of 11(A)(2) resort opinion.* court’s appeals procedure of 5 U.S.C. My reservations about this rather nar- 7117(c) to disputes resolve § involving an aspect row of the case can be briefly stat- agency’s good-faith refusal ed. The union proposed to the Authority a an allegedly nonnegotiable proposal, and in sweeping proposal that would elimi- have light of Executive Order practices that pertinent nated the regulations in their were en- consistent and perhaps, with in con tirety junction and substituted in 7135(b), place with U.S.C. their whol- even re quire provisions ly new regime. contained regime, final That among sentences of 5 C.F.R. 2424.5, and things, would have worked dramatic al- we reject cannot the FLRA’s reading of the teration of one salient feature the exist- Statute. This is a case which we are ing statutory structure, namely elimination “unable to congressional discern intent af of the discretion vested in the General ter employing traditional of statutory tools Counsel to determine whether an unfair Brock, construction.” UAW v. 816 F.2d at complaint would issue in this n. Therefore, we defer to agen genre of cases. cy’s judgment because it is “based on a permissible Having construction of rebuffed by statute.” the Authority, Id. at 765 (quoting Chevron, 467 union, at U.S. as was its prerogative, repaired 2782). But, to our court. as the discussion at pages 3-6 of the opinion indicates, posi- III. Conclusion tion by advanced the union here quite Because our use of the “traditional tools different from proposed to the Author- of statutory construction” enabled ity. Eschewing its earlier proposal to re- us to tease Statute, work fundamentally the manner in which history, prior practices a clear congres- such handled, cases are the union stated sional intent regarding limits, if any, on us, before more modestly, that it desired the remedies available organiza- to labor only to eliminate the last sentence of the tions that successfully appeal an agency’s existing regulations. face, On its posi- good-faith allegation of nonnegotiability, tion is considerably less sweeping than the uphold “permissible” the FLRA’s inter- wholesale assault embodied in the union’s pretation of the deny Statute and the Un- position before the Authority. ion’s for review. So As I statute, ordered. read the it precisely tactics Congress preclude. intended to STARR, Circuit Judge, concurring: 7123(c)(1982). Orderly adminis- I concur in the judgment tration agencies and most of of government, em- the court’s opinion. I am unable, however, bodied in the judge-made doctrine of ex- 11. The Union contends lieve, that the Executive Order was definitively laid Supreme down system superseded by specific statutory pro- Court in NRDC, Chevron U.S.A.Inc. v. U.S. respects. visions in several Reply Brief for 104 S.Ct. (1984) 81 L.Ed.2d 694 and is Petitioners at 14-19. Because the correctness of further elucidated Cardoza-Fonseca, in INS v. necessarily assertions would not affect the — —, U.S. 107 S.Ct. 94 L.Ed.2d 434 consonance of 5 C.F.R. 2423.5 and 2424.5 (1987). view, my today's result and much of with judge we decline to the accura- analysis court's accurately articulates the cy of these contentions. operative standard and achieves the Chevron * continuing A -mandated challenge courts, my part, balance. For the lower I and continue to especially tribunal, our own believe that two-step is to interpretative strike Chevron’s appropriate process, balance between the roles of court which was reaffirmed in Cardoza- interpretation in the Fonseca, provides statutes. polestar guide that is to striking balance, framework for be- I us. Notwith- misinterpret our decision. in a will sanctioned haustion appeal, indulgence of this standing our statutes, see, e.g., variety of any way entertain the to formu- parties counsel should (1982), requires 160(e) improved proposals positions bringing before new present their notion late day in the is too late appeal, it cases. appeal On in future agency. proposal ad- unsuccessful to overhaul Second, my shared I concern note wrap attempt to agency and vanced Judge Starr has about the reservation garb. modest, provocative less in more Cardoza- interpretation of Chevron and side, side proposals two Laying any about doubts Fonseca. Because simply them are between the differences do understanding of those decisions proper to con- me in conscience manifest too case, how- of this the outcome affect by the advanced position clude unnecessary them. ever, to resolve I find it advanced position is the in this court union case, I am being the That agency. to the disagree with constrained thus limited colleagues in this my

analysis of

respect. GINSBURG, Judge, Circuit

D.H.

concurring: except as opinion in the court’s DAYTON, concur Appellant, I Paul I write final below. paragraph in the

noted v. con- the two to address in order separately concurring SOCIALIST Judge CZECHOSLOVAK Starr’s raised cerns REPUBLIC, al. et opinion. Starr, I troubled First, Judge am like STIASSNI, al., Appellants, et Joseph E. proposal difference between submitted originally proposal narrower the somewhat SOCIALIST CZECHOSLOVAK this court. brought before REPUBLIC, et al. original proposal aspect of the One requir- option 87-7019, give unions 87-7020.

peared to Nos. to issue Counsel ing the General Appeals, Court United States involving complaints in cases Circuit. Columbia District of before disputes. as it substantively insofar differs court 2, 1987. Nov. Argued option. Counsel that the General leaves Dec. Decided original proposal rejected the put upon obligation it however, for a Counsel, but General con- reason—one different necessarily extends

struction —that It is abundant- this court.

proposal before from opinion below

ly clear court briefs require Act would interpretation revised, narrower

rejection of Union’s

proposal. hesi-

Therefore, only after some albeit mer- reaching the

tation, join I my My hesitation reflects case. of this cases counsel that union

concern

Case Details

Case Name: National Labor Relations Board Union v. Federal Labor Relations Authority

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

Date Published: Dec 4, 1987

Citation: 834 F.2d 191

Docket Number: 86-1624

Court Abbreviation: D.C. Cir.