The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 7, 2005 Decided July 8, 2005
No. 04-1137
NATIONAL TREASURY EMPLOYEES UNION,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
UNITED STATES CUSTOMS AND BORDER PROTECTION,
UNITED STATES DEPARTMENT OF HOMELAND SECURITY
INTERVENOR
On Petition for Review of an Order of the
Federal Labor Relations Authority
Elaine D. Kaplan argued the cause for the petitioner. Gregory
O’Duden and Larry J. Adkins were on brief.
James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for the respondent. David M. Smith,
Solicitor, Federal Labor Relations Authority, and William R.
Tobey, Deputy Solicitor, Federal Labor Relations Authority,
were on brief.
2
Peter D. Keisler, Assistant Attorney General, United States
Department of Justice, William G. Kanter, Deputy Director, and
Sandra W. Simon, Attorney, were on brief for the intervenor. E.
Roy Hawkens, Attorney, entered an appearance.
Before: GINSBURG, Chief Judge, and HENDERSON and
RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Granting the
exceptions taken by the United States Department of the
Treasury’s Customs Service1 (Customs), the Federal Labor
Relations Authority set aside an arbitration award in favor of the
National Treasury Employees Union (NTEU). See United States
Dep’t of the Treasury Customs Serv., Washington, D.C.
(Agency) & Nat’l Treasury Employees Union (Union), 59 FLRA
703 (2004) (Customs Order), reprinted in Joint Appendix (J.A.)
at 271-96. The NTEU now petitions for review of the
Authority’s order, alleging that the Authority erred twice:
initially, by concluding that Customs exercised statutorily
protected management rights when it implemented a revised
National Inspectional Assignment Policy (NIAP); and, again, by
concluding that, assuming arguendo that Customs in fact
exercised its managements right in implementing the revised
1
At the time this suit was initiated, the Customs Service was a
bureau within the Treasury Department. The Homeland Security Act
of 2002, however, transferred the Customs Service to the United
States Department of Homeland Security, whereupon it was renamed
the Bureau of Customs and Border Protection. See Pub. L. No. 107-
296, § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308;
Reorganization Plan Modification for the Department of Homeland
Security, H.R. Doc. No. 108-32, at 4 (2003); see also 6 U.S.C.
§ 203(a)(1). Given the name change and for the sake of convenience,
we refer to the then-“Customs Service”/now-“Bureau of Customs and
Border Protection” simply as “Customs.”
3
NIAP, Customs was not obligated to bargain over the NTEU’s
ground rule proposal. Because the Authority erred in neither
respect, we deny the NTEU’s petition.
I.
The Federal Service Labor-Management Relations Statute
(FSLMRS or Statute), 5 U.S.C. §§ 7101-7135, “establishes a
collective bargaining regime in the federal public sector.” Ass’n
of Civilian Technicians v. FLRA, 353 F.3d 46, 49 (D.C. Cir.
2004) (citing United States Dep’t of the Navy v. FLRA, 952 F.2d
1434, 1438 (D.C. Cir. 1992)). This controversy involves the
Statute’s management rights doctrine codified in section 7106.
See 5 U.S.C. § 7106. While the Statute generally obligates an
agency to negotiate with its employees’ bargaining
representative over “conditions of employment,” id.
§ 7103(a)(12)—i.e., “personnel policies, practices, and matters
. . . affecting working conditions,” id. § 7103(a)(14)—section
7106 “reserv[es] to management officials the authority to, inter
alia, make budget, organization, and work assignments.”2 FLRA
2
Section 7106 provides:
(a) Subject to subsection (b) of this section, nothing
in this chapter shall affect the authority of any
management official of any agency--
(1) to determine the mission, budget, organization,
number of employees, and internal security practices
of the agency; and
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain
employees in the agency, or to suspend, remove,
reduce in grade or pay, or take other disciplinary
action against such employees;
4
v. United States Dep’t of Justice, 994 F.2d 868, 871-72 (D.C.
Cir. 1993). Nonetheless, these rights of unilateral action, which
are permissive subjects of bargaining, see Nat’l Treasury
Employees Union v. FLRA, 399 F.3d 334, 340 & n.5 (D.C. Cir.
2005), are not unqualified. An agency exercises management
(B) to assign work, to make determinations with
respect to contracting out, and to determine the
personnel by which agency operations shall be
conducted;
(C) with respect to filling positions, to make
selections for appointments from--
(i) among properly ranked and certified
candidates for promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to
carry out the agency mission during emergencies.
(b) Nothing in this section shall preclude any agency
and any labor organization from negotiating--
(1) at the election of the agency, on the numbers,
types, and grades of employees or positions assigned
to any organizational subdivision, work project, or
tour of duty, or on the technology, methods, and
means of performing work;
(2) procedures which management officials of the
agency will observe in exercising any authority under
this section; or
(3) appropriate arrangements for employees adversely
affected by the exercise of any authority under this
section by such management officials.
5 U.S.C. § 7106.
5
rights subject to bargaining over the “impact and
implementation” of the rights. Dep’t of the Navy v. FLRA, 962
F.2d 48, 50 (D.C. Cir. 1992). “Nothing in this section,” the
Statute says, “shall preclude any agency and any labor
organization from negotiating” over either “procedures which
management officials of the agency will observe in exercising
any authority under this section . . . or appropriate arrangements
for employees adversely affected by the exercise of any
authority under this section by such management officials.” 5
U.S.C. § 7106(b)(2)-(3). Thus, “although an agency is not
required to bargain with respect to its management rights per se,
it is required to negotiate about the impact and implementation
of those rights.” Dep’t of the Navy, 962 F.2d at 50 (internal
quotation marks omitted & emphasis in original). Under the
Statute, all bargaining must be carried out in “good faith.” Id.
§ 7114(a)(4), (b).
The distinction between an agency’s exercise of management
rights and its obligation to engage in impact and implementation
bargaining is the crux of this controversy, which has its genesis
in Customs’ revised policy governing the assignment of
Customs inspectors to tours of duty and overtime work known
as the National Inspection Assignment Policy (NAIP). Customs
and the NTEU, which represents “a nationwide unit” of Customs
Service employees, including Customs inspectors, have
negotiated a series of national level collective bargaining
agreements (NLAs). The most recent NLA (and the one the
parties were abiding by when this dispute arose) expired in
1999.
In 1993, the Congress passed the Customs Officers Pay
Reform Act (COPRA), which overhauled the overtime system
applicable to Customs inspectors. See Pub. L. No. 103-66,
§ 13811(a), 107 Stat. 312 (1993) (codified at 19 U.S.C. § 267).
To implement COPRA, that same year Customs and the NTEU
formed a joint labor-management committee, whose work
6
culminated, two years later, with the NIAP. See J.A. 272. The
NIAP was developed independently of the 1999 NLA.
At the time the NIAP was formulated, Customs, along with all
other federal agencies, was required under Executive Order
12871 to negotiate over the permissive subjects of bargaining set
forth in section 7106(b)(1) of the FSLMRS. See 58 Fed. Reg.
52,201 (Oct. 1, 1993). Section 7106 identifies the subjects as
“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.” 5 U.S.C. § 7106(b)(1). In 2001, however,
President George W. Bush revoked Executive Order 12871 by
issuing Executive Order 13203. See 66 Fed. Reg. 11,227 (Feb.
17, 2001).
Following Executive Order 13203, Customs advised the
NTEU that it no longer intended to negotiate over permissive
subjects of bargaining as previously required by article 5,
section 2, of the NLA. In that section of the NLA, Customs
agreed, “[i]n the interest of partnership, . . . to bargain with the
Union over the numbers, types and grades of employees or
positions assigned to any Customs Service organizational
subdivision, work project or tour of duty, and the technology,
methods and means of performing work within the Service.”
J.A. 273. Customs further advised the NTEU that it no longer
considered itself bound by provisions of agreements—including
the NLA and the NIAP—relating to permissive subjects of
bargaining. Customs transmitted to the NTEU a draft of a
revised NIAP that it planned to implement on September 30,
2001.
A correspondence battle ensued during August and September
of 2001, only the salient aspects of which we recount now. On
August 6, the NTEU invoked its right to bargain over the impact
and implementation of the revised NIAP and served notice of its
intent to renegotiate the expired NLA. Customs responded on
7
August 16 by repeating its planned implementation of the
revised NIAP on September 30, 2001. The following day, the
NTEU iterated its intent to “open the entire term agreement,”
highlighting various provisions which, it claimed, bore a “direct
connection” to the NIAP and to its section 7106 rights. On
August 22, Customs informed the NTEU that it was prepared to
“work out” ground rules to govern renegotiation of the expired
NLA but that, as to the proposed revised NIAP, Article 37 of the
expired NLA “establishes standard ground-rules for the
negotiation of interim topics such as the revised NIAP.” J.A.
46-47. The NTEU replied the next day, stating that “actual
negotiations” could not begin on any topic “until the parties
have reached agreement on ground rules.” J.A. 47A. On
August 27, Customs again declared that the ground rules set
forth in Article 37 of the expired NLA governed negotiations
over the revised NIAP.
On August 29, Customs and the NTEU met to discuss ground
rules but to no avail. They exchanged correspondence the
following day: Customs stated it did not “agree to merge,” as the
NTEU had proposed, negotiations over the revised NIAP with
those regarding the expired NLA, while the NTEU said it
“continues to believe that concerns associated with” the NIAP
“should be addressed as part of the overall negotiations” on the
expired NLA. J.A. 53-54. In its letter, the NTEU also proposed
that the existing NIAP be “rolled-over,” subject to a few
specified revisions. J.A. 55. Customs responded that it did not
intend to delay the implementation of the revised NIAP until the
parties renegotiated the NLA. On September 6, 2001, Customs
had the last word in this exchange: It notified the NTEU that any
delay in implementing the revised NIAP “is unacceptable” and,
consequently, it “decline[d] to accept the NTEU’s suggestion
that [it] forego revision and implementation of the NIAP in
order to address it during renegotiation of the national
agreement.” J.A. 56-57.
8
Believing the parties had reached an impasse over its proposal
to negotiate the NIAP and NLA simultaneously, the Union
sought assistance from the Federal Mediation and Conciliation
Service the day it received Custom’s last letter.3 Customs
proceeded to implement the revised NIAP on October 1, 2001,
insisting in a letter to the NTEU that day that, in light of new
requirements imposed after the catastrophic attacks by foreign
terrorists against our nation’s citizens on September 11, 2001,
immediate implementation was “critical . . . to ensure the
necessary functioning of Customs.” J.A. 65. The Union
responded with a letter of its own and also filed a grievance with
the Authority alleging that, by implementing the revised NIAP,
Customs violated section 7116(a)(1) and (5) of the FSLMRS.
Following submission of the Union’s grievance to arbitration, an
arbitrator concluded that the parties should bargain over
revisions to the NIAP and, consequently, remanded the matter
for the parties to negotiate the impact and implementation of the
revised NIAP. Both parties filed exceptions to the arbitrator’s
award with the Authority—Customs to the award itself, the
NTEU to the arbitrator’s choice of remedy.
The Authority granted Customs’s exceptions and set the award
aside. See Customs Order, 59 FLRA at 708-11. At the outset of
its analysis, the Authority observed that, because Customs had
“proposed a specific change in unit employees’ conditions of
employment pursuant to the exercise of its management rights
under § 7106 of the Statute while the parties were contemplating
negotiation of a new term agreement,” the case presented an
issue of first impression. Id. at 708. Resolution of the case, it
said, turned on Customs’s “legal ability, if any, to refuse to
3
The mediator did not break the impasse and on September 21,
2001, the NTEU requested assistance from the Federal Service
Impasse Panel, which ultimately declined to exercise jurisdiction over
the dispute.
9
bargain over the [NTEU]’s proposed ground rule requiring
[Customs] to combine its proposed impact and implementation
bargaining obligation with the negotiation of a term agreement.”
Id. Two possible answers, the Authority observed, carried two
different consequences for Customs. See id. On the one hand,
if Customs could refuse to bargain over the NTEU’s proposed
ground rule, it explained, “the Union’s refusal to engage further
in impact and implementation bargaining would permit
[Customs] to unilaterally implement its proposed change to
conditions of employment.” Id. If, on the other hand, Customs
was required to bargain over the proposed ground rule, Customs
“would commit an unfair labor practice by its unilateral
implementation of the revised NIAP.” Id.
The Authority chose the first answer, finding that “the Union’s
proposed ground rule constitutes a permissive subject of
bargaining and, consequently, that the Agency was under no
obligation to bargain on that subject as a precondition to impact
and implementation of the revised NIAP.” Id. In articulating
the basis of its decision—i.e., “that an agency cannot be
compelled to bargain over combining impact and
implementation and term bargaining and it has the right to insist
that such bargaining proceed on separate tracks”—the Authority
delineated two principles. Id. First, it noted that “[w]here an
agency action constitutes the exercise of a management right”
under sections 7106(a) and 7106(b)(1) of the FSLMRS, its
“obligation is limited to bargaining over the procedures
governing the exercise of the right, under § 7106(b)(2) of the
Statute, or appropriate arrangements for employees adversely
affected by the exercise of the right, under § 7106(b)(3).” Id.
Second, relying on our decision in FLRA v. United States Dep’t
of Justice, 994 F.2d 868 (D.C. Cir. 1993), the Authority
observed that, because an agency exercising a management right
need not bargain over matters beyond the scope of impact and
implementation bargaining, its “duty to bargain over ground
10
rules must be consistent with the parties’ obligation to bargain
in a particular case.” Id. at 709.
After finding that the NTEU’s right to bargain “was limited to
the impact and implementation of the proposed changes in the
revised NIAP,” id. at 711; see also id. at 708, because
implementation of the revised NIAP involved the exercise of a
statutory management right, the Authority then considered
whether the NTEU’s “proposed ground rule addresse[d] only
procedures or appropriate arrangements relating to the change
in conditions of employment proposed” by the revised NIAP.
Id. at 710. “Clearly, it does not,” the Authority concluded,
because “[b]ased on the record, there is no question but that
bargaining over a new term agreement would extend beyond the
narrow scope of issues related to the procedures and appropriate
arrangements governing implementation of the revised NIAP.”
Id. While it acknowledged that the NTEU “identified provisions
of the NLA that related to the NIAP that it wished to discuss in
term negotiations,” the Authority found that “it also demanded
to bargain over other, unrelated provisions of the NLA as well.”
Id. Therefore, the Authority concluded, because the “Union
proposed, as a condition precedent to bargaining over the impact
and implementation of the revised NIAP, that [Customs] agree
to bargain that matter as a part of bargaining over a new term
agreement,” the Union’s ground rule “exceeded the scope of
impact and implementation bargaining and [Customs] had no
obligation to bargain over [it].” Id.
The Authority additionally explained that, because the
proposed ground rule sought in effect a waiver of Customs’s
right to bargain only over those procedures and arrangements
related to the revised NIAP, it constituted a “permissive subject
of bargaining.” Id. at 710. Consequently, in the Authority’s
view, Customs had the “right not only to refuse to bargain to
impasse over the matter, but also to implement the revised NIAP
without completing bargaining.” Id. Therefore, the Authority
11
concluded, Customs did not violate the FSLMRS by
implementing the revised NIAP on October 1, 2001. See id.
The Authority further reasoned that a contrary rule—i.e., one
“requiring agencies to bargain [over] a ground rule conditioning
impact and implementation bargaining on the negotiation of a
term agreement,”—would, to its mind, “frustrate the
compromise reached by Congress in enacting § 7106.” Id.
(emphasis in original). Such a rule “would not,” the Authority
explained, “give full effect to the place of management rights in
the statutory scheme because it would tie the exercise of a right
to objectives that have nothing to do with the purposes for which
the right was being exercised.” Id. Indeed, the Authority
observed, “it would be exceedingly anomalous if a union could
achieve through ground rules bargaining an expansion of
negotiations that it could not accomplish through bargaining
over procedures and appropriate arrangements.” Id. at 711.
Because Customs’ “implementation of the revised NIAP, in
the face of a proposal over which it was not obligated to bargain,
was, therefore, not a violation of the Statute,” the Authority
concluded that the arbitrator erred as a matter of law in deciding
otherwise and set his award aside. 4 Id. The NTEU then timely
4
Member Pope concurred in the judgment but declined to join the
majority opinion because, as she saw it, “the problem with the
proposed ground rule . . . was that it sought to combine bargaining
over unrelated provisions in the term agreement with impact and
implementation bargaining.” Id. at 712. “[I]f the Union had limited
its bargaining request to related, mandatory provisions of the term
agreement,” she asserted, Customs “would have been required to
bargain over these provisions prior to implementing the change.” Id.
She also disagreed with the majority’s conclusion that the NTEU’s
proposed ground rule sought a waiver of Customs’ right to bargain
only over procedures and appropriate arrangements regarding the
revised NIAP. See id. “This case,” she claimed, “is about bargaining
over unrelated matters; waiver has nothing to do with it.” Id.
12
filed a petition for review pursuant to 5 U.S.C. § 7123(a).
II.
We begin with the standards by which we review the
Authority’s order. First, there is the familiar Administrative
Procedure Act standard, see 5 U.S.C. § 7123(c) (incorporating
5 U.S.C. § 706): “[W]hen acting ‘within its authority’ and
‘consistent with the congressional mandate,’ the Authority’s
decision may only be set aside if it is found to be ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.’ ” Ass’n of Civilian Technicians v. FLRA,
250 F.3d 778, 782 (D.C. Cir. 2001) (quoting 5 U.S.C. §
706(2)(A); Bureau of Alcohol, Tobacco & Firearms v. FLRA,
464 U.S. 89, 97 & n.7, 98 & n.8 (1983)); see also AFGE Local,
2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998). In addition
there is the classic two-step methodology governing the
Authority’s interpretation of the Statute: If the Congress “has
directly spoken to the precise question at issue,” the court
“give[s] effect to [its] unambiguously expressed intent,” but if
the statute is silent or ambiguous the court defers to the
Authority’s interpretation so long as it is “based on a permissible
construction of the statute.” Chevron USA Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see also Dep’t
of the Air Force v. FLRA, 294 F.3d 192, 196 (D.C. Cir. 2002).
These standards are deferential ones, for, as the Supreme Court
has reminded us, the Authority—not this court—is the expert on
federal labor relations. Because “the Authority’s function is ‘to
develop specialized expertise in its field of labor relations and
to use that expertise to give content to the principles and goals
set forth in the Act,’ . . . it ‘is entitled to considerable deference
when it exercises its “special function of applying the general
provisions of the Act to the complexities” of federal labor
relations.’ ” Nat’l Fed’n of Fed. Employees v. Dep’t of the
Interior, 526 U.S. 86, 99 (1999) (quoting Bureau of Alcohol,
Tobacco & Firearms, 464 U.S. at 97 (in turn quoting NLRB v.
13
Erie Resistor Corp., 373 U.S. 221, 236 (1963))). The
application of these deferential standards of review is fatal to
NTEU’s two arguments, each of which we take up—and
reject—in turn.
The NTEU’s opening attack is on the Authority’s conclusion
that Customs exercised its statutory management rights in
proposing revisions to the NIAP. According to the NTEU, the
Authority’s “erroneous premise” falls apart once it is recognized
that the proposed revisions altered “pre-existing negotiated
procedures and appropriate arrangements,” a topic outside
Customs’ statutory management rights and therefore within
Customs’ duty to bargain. Petitioner’s Br. at 32. That is, in the
NTEU’s words: “[W]hen Customs proposed to replace the
negotiated procedures and appropriate arrangements of [the
NIAP] with new procedures and appropriate arrangements . . .
it was proposing a change in conditions of employment over
which it had a substantive obligation to bargain.” Petitioner’s
Br. at 34.
The NTEU’s Chevron step-one argument—i.e., that the
Authority mischaracterized the implementation of the NIAP as
the exercise of a management right rather than as a bargainable
change to appropriate arrangements and procedures—is a non-
starter at best. The NTEU is right that the language and
structure of section 7106 manifest a “deliberate distinction”
between an agency’s management rights, on the one hand, and
matters subject to bargaining on the other. Petitioner’s Br. at
33. The language of the statute does indeed qualify the
management rights: The phrase “nothing . . . shall affect the
authority of any management official of any agency” begins
subsection (a), while the provision that “[n]othing . . . shall
preclude any agency and any labor organization from
negotiating” introduces the matters set forth in subsection (b).
5 U.S.C. § 7106(a)-(b). Subsection (b), moreover, identifies
two subjects of mandatory negotiation: “procedures which
14
management officials of the agency will observe in exercising
any authority under this section,” id. § 7106(b)(2), and
“appropriate arrangements for employees adversely affected by
the exercise of any authority under this section by such
management officials,” id. § 7106(b)(3). The distinction
between management rights and negotiable matters is further
reinforced by the statute’s structure, which (with the exception
of subsection (b)(1)) divides management rights from the
negotiable matters by placing them in different subsections,
compare id. § 7106(a), with id. § 7106(b)(2)-(3)—a division
highlighted by the statute’s command that actions under
subsection (a) be taken “[s]ubject to” subsection (b). Id.
§ 7106(a). But the NTEU’s insistence that Customs’ subsection
(a) management rights must be exercised “[s]ubject to”
subsection (b)(2) procedures and subsection (b)(3) appropriate
arrangements does little to advance its argument, the gravamen
of which is that the Authority wrongly concluded that Customs’
revision constitutes the exercise of management rights rather
than the alteration of procedures and arrangements by which it
exercises those rights. In other words, it does not, as the NTEU
contends, “follow necessarily” from either the statutory
structure or text that the NIAP falls into section 7106’s
negotiable procedures and arrangements category rather than
the management rights category.
The gist of NTEU’s argument on this point appears to be
based on its view that “it is clear that several significant
provisions of the NIAP had no relationship whatsoever to the
exercise of any management right,” a view it supports by citing
various “procedures and appropriate arrangements that the
parties had previously negotiated to govern the exercise of
Customs’s authority to assign work” resulting from the
revisions. Petitioner’s Br. at 32. The Authority, however,
reached a contrary conclusion. The NIAP involves management
rights, it said, because its review of the revised NIAP
“indicate[d] that the revised NIAP constitutes, among other
15
things, criteria governing employee work assignments, under
§ 7106(a)(2)(B) of the Statute, and staffing patterns, under
§ 7106(b)(1).” Customs Order, 59 FLRA at 708 n.16. While
the Authority’s analysis is unquestionably terse, its
characterization is borne out by the administrative record. The
revised NIAP specifically provides that management decisions
pertaining to, inter alia, scheduling, staffing levels and overtime
are to be governed by “operational needs” and “budgetary
limitations.” J.A. 30-32. We have, in the past, recognized that
the specification of “criteria pursuant to which substantive
decisions are to be made,” such as, in this case, “operational
needs” and “budgetary limitations,” comes within the exercise
of management rights. See Dep’t of Treasury v. FLRA, 857 F.2d
819, 821 (D.C. Cir. 1988). We do so again with respect to the
revised NIAP.
The NTEU also argues that, in concluding the revised NIAP
implicates management rights, the Authority departed from an
earlier decision—United States Dep’t of Treasury, Customs
Serv. Region IV, Miami Dist., Miami, Fla. (Respondent) &
Nat’l Treasury Employees Union (Charging Party), 38 FLRA
838 (1990) (Miami Customs)—without explanation. Miami
Customs, according to the NTEU, “demonstrates that Customs
was obligated to bargain over the substance of its decision to
revise [the] NIAP, not merely its impact and implementation.”
Petitioner’s Br. at 34. We do not agree. In Miami Customs, the
Authority held that the Miami District Customs Service
violated the FSLMRS in implementing a new rotation system
after refusing to bargain over a negotiable union proposal
addressing the length of an inspector’s time on a given
assignment. See Miami Customs, 38 FLRA at 844. Unless a
proposal involving the right to assign work directly interferes
with the exercise of a management right, the Authority
explained, it is negotiable. See id. at 842. Accordingly,
because “proposals which address only the length of an
assignment within such a rotation schedule do not interfere with
16
the management’s right to assign work,” the Miami District
Customs Service was obligated to bargain over the union’s
proposal. Id. at 843. Nothing in Miami Customs at all
undermines the Authority’s conclusion that Customs’
specification in the revised NIAP of substantive criteria
governing management decisions pertaining to scheduling,
staffing and overtime was the exercise of a management right
and therefore not a matter over which Customs had a
mandatory duty to bargain under the Statute.
We find the NTEU’s next argument—i.e., even assuming that
Customs exercised its management rights in implementing the
revised NIAP, it was nevertheless obligated to bargain over the
proposed ground rule regarding the timing of bargaining over
both the NIAP and a new NLA—wanting as well. The
Authority’s conclusion in this regard, the NTEU maintains,
stems from a misapplication of the analysis we outlined in FLRA
v. United States Dep’t of Justice, 994 F.2d 868 (D.C. Cir. 1993),
to its ground rule proposal and produces “an anomalous result
that undermines the statutory purposes.”5 Petitioner’s Br. at 50.
5
The NTEU also maintains that Customs was obligated under
Authority precedent to bargain over its proposed ground rule because
it was offered in good faith and designed to advance—not
impede—the bargaining process. See Petitioner’s Br. at 39-46. The
Authority responds that the NTEU waived this argument. See
Respondent’s Br. at 31 n.11. Although the NTEU offered record
citations purporting to refute the Authority’s charge, see Petitioner’s
Rep. Br. at 11-12 n.6, it failed to provide us with the cited pages until
after we directed it to do so at oral argument. See Letter from Elaine
Kaplan, Senior Deputy General Counsel, to Mark Langer, Clerk of
D.C. Circuit Court of Appeals, at 1 (Feb. 8, 2004). Our review of its
subsequent submission convinces us that the NTEU has indeed waived
this argument because it appears nowhere in the cited pages—or the
eight additional unsolicited pages the NTEU submitted with them. See
5 U.S.C. § 7123(c) (“No objection that has not been urged before the
17
Not so. Because it constitutes a reasonable interpretation of the
mutual statutory duty to bargain in good faith, see 5 U.S.C
§ 7114(a)(4), (b), we uphold the Authority’s conclusion that
Customs was not obligated to bargain over a ground rule
proposal that is inconsistent with the parties’ specific obligation
to bargain in this case—that is, in the Authority’s words, one
that “exceeded the scope of impact and implementation
bargaining.” Customs Order, 59 FLRA at 810.
First, we cannot say the Authority misapplied our Dep’t of
Justice decision here. There, we addressed a petition for
enforcement of an Authority order requiring the San Diego
Border Patrol to bargain over the impact and implementation of
a relocation of employees to various locations in San Diego
County. See Dep’t of Justice, 994 F.2d at 870-72. We held that
the Border Patrol did not violate the FSLMRS in refusing to
bargain over the union’s proposal to use the vacated space
resulting from the relocation. See id. at 873. We explained that
“the term ‘impact and implementation’ includes only the
procedures which management officials of the agency will
observe in exercising management rights and appropriate
arrangements for employees adversely affected by the exercise
of such rights.” Id. at 872 (further internal quotation marks &
citations omitted). The “disputed subject matter” did not “fit[]
within either of those subsets,” we concluded, because it was
“clear that the creation of an office for the Union has nothing to
do with the procedures used by management for the resource
and personnel allocation involved in the decentralization of the
unit.” Id.
Authority . . . shall be considered by the court.”); Dep’t of Treasury v.
FLRA, 707 F.2d 574, 579 (1983) (“[W]e cannot review issues that an
agency never placed before the Authority.” (emphasis in original));
see also Equal Employment Opportunity Comm’n v. FLRA, 476 U.S.
19, 23 (1986). The NTEU is a frequent litigant in our court and its
counsel is cautioned against attempting to lead us astray in the future.
18
Here, the Authority’s conclusion that the “limitation on the
scope of impact and implementation bargaining” in Dep’t of
Justice is “no different when the question . . . concerns an
agency’s obligation to bargain over the ground rules for
negotiating over the impact and implementation of an exercise
of a management right,” Customs Order, 59 FLRA at 709,
derives from our declaration in Dep’t of Justice that a
“ ‘proposal must address adverse effects flowing from the
exercise of a protected management right.’ ” 994 F.2d at 872
(quoting & citing United States Dep’t of Treasury v. FLRA, 960
F.2d 1068, 1073 (D.C. Cir. 1992)). As the Authority
recognized, it “would be exceedingly anomalous” if the NTEU
could use a ground rule proposal to expand the scope of
negotiations beyond that of impact and implementation
bargaining itself. Customs Order, 59 FLRA at 711.
Furthermore, we cannot help but note that the Authority’s
interpretation is wholly consistent with other precedent. Its
observation fifteen years ago that “ground rules proposals must,
at a minimum, be designed to further, not impede, the
bargaining for which the ground rules are proposed,” United
States Dep’t of the Air Force Headquarters, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio
(Respondent) & AFGE, Council 214 (Charging Party), 36
FLRA 524, 533 (1990) (emphasis added), is simply another way
of stating that “the duty to bargain over ground rules must be
consistent with the parties’ obligation to bargain in a particular
case.” Customs Order, 59 FLRA at 709.
Moreover, the Authority’s interpretation of the mutual
statutory duty to bargain in good faith makes sense even without
resort to supporting precedent. Notwithstanding the NTEU’s
contrary characterization, the Authority did not conclude that an
agency is never obligated to bargain over a ground rule proposal
to combine negotiations; rather, it held only that Customs was
under no such duty to do so in this instance because the NTEU’s
“proposed ground rule exceeded the scope of impact and
19
implementation bargaining.” Customs Order, 59 FLRA at 710.
The Authority’s holding, as it noted, advances statutory
objectives we also recognize. In the past, we have stated that
“[b]y ascribing certain management rights to agencies, but
tempering those rights through the requirements of impact and
implementation bargaining” the Congress balanced “the
agency’s need to manage itself efficiently and the employees’
right to participate in the decisions that affect them.” Dep’t of
the Navy, 962 F.2d at 50 n.1. We described the balance as a
“delicate” one, id., and we think the Authority reasonably
determined that the balance would be upset if the NTEU could
use a ground rule proposal to require Customs to negotiate on
matters unrelated to the impact and implementation of the
revised NIAP. Not only would the inevitably resulting delay in
implementing the revised NIAP frustrate the Statute’s “larger
goal of promoting ‘an effective and efficient government,’ ”
Dep’t of Treasury, 857 F.2d at 822 (quoting & citing 5 U.S.C.
§ 7101(b)), but requiring Customs to bargain over such a
proposal would diminish the role of management rights in the
statutory scheme by conditioning their exercise on bargaining
over matters having nothing to do with the exercise of the rights
themselves. Cf. Dep’t of Justice, 994 F.3d at 872 (To fall within
subparagraph(b)(3) “proposal must address adverse effects
flowing from the exercise of a protected management right.”).
Because it is clear to us, as it was to the Authority, that
bargaining over the terms of a new NLA would necessarily
extend further and take longer than bargaining over the impact
and implementation of Customs’ revised NIAP, we conclude
that the Authority reasonably upheld both the Customs’ refusal
to consider NTEU’s proposal to bargain over the two matters
simultaneously as well as Customs’ implementation of the
revised NIAP.
20
* * *
For the foregoing reasons, we deny the NTEU’s petition for
review.
So ordered.