The opinion
VOORHEES, Chief District Judge,
concurring in part and dissenting in part:
I concur in part IV of the court’s opinion. I respectfully dissent from parts I — III granting enforcement as to the collective bargaining agreement’s “official time” provisions.
The question of negotiability of official time involves the proper interpretation of 5 U.S.C. § 7131 (d)(2). The essence of the employment relationship is the agreement of the employee to do the employer’s work and that of the employer to compensate the employee for doing that work. In derogation of management’s right to assign work ( 5 U.S.C. § 7106 (a)(2)(B)), § 7131 specifies those instances in which an employee may and may not be authorized official time, within the area of labor relations activities, for purposes other than work assigned by the employer. There is no contention that any provision of that section affirmatively permits official time for the purposes challenged by the Appellant, but only a contention that § 7131(d)(2) “does not preclude” negotiation for such official time. The wording of this section, however, under the principal of ex-pressio unius est exclusio alterius, does not permit an inference that an implied, additional clause exists in aether, granting the latitude sought by Appellee. It strains credulity, and a reading of the legislative history of the section, to assert that the Congress meant to grant scope for bargaining over official time for matters not within the express terms of the section, and particularly in areas where the interests promoted are those of individual employees and not the union itself.
Likewise, an attempt to invoke § 7131(d)(2) itself on behalf of Appellants must fail. The proposals set forth in the collective bargaining agreement would require official time for union representatives to appear on behalf of employees in proceedings before the Merit Systems Protection Board (MSPB), in hearings before the Equal Employment Opportunity Commission (EEOC) and in unfair labor practice proceedings (ULP) before the Federal Labor Relations Authority. Subsection (d)(2) would permit negotiation for such official time only if it is “in connection with any other matter covered by this chapter----”
Chapter 71 covers bargaining related to conditions of employment but not “to the extent such matters are specifically provided for by Federal Statute.” 5 U.S.C. § 7103 (a)(14)(C). MSPB and EEOC proceedings are covered by specific federal statute outside of Chapter 71. See, e.g., 5 U.S.C. §§ 1204 (a)(1) and (h), §§ 7121(e) and (f), §§ 7513(d) and 7701, and 42 U.S.C. § 2000e-16(b), respectively. Official time for appearances in connection with ULP would at first glance come under § 7131(d)(2), but do not because § 7131(c) grants the authority for allowance of such time directly to the FLRA.