Petition for Writ of Certiorari — Federal Employees v. Department of Interior

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,

Loca. 1309,

‘ Petitioner,

UNITED STATES DEPARTMENT OF THE INTERIOR,

WASHINGTON, D.C.,

U.S. GEOLOGICAL SURVEY, RESTON, VIRGINIA,

AND FEDERAL LABOR RELATIONS AUTHORITY

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

GREGORY O’DUDEN *

General Counsel

ELAINE KAPLAN

Deputy General Counsel

Of Counsel: BARBARA A. ATKIN

LESLIE DEAK Associate General Counsel

Staff Attorney for Appellate Litigation

NATIONAL FEDERATION OF NATIONAL TREASURY

FEDERAL EMPLOYEES EMPLOYEES UNION

1016 16th Street, N.W. 901 E Street, N.W.

Suite 300 Suite 600

Washington, D.C. 20036 Washington, D.C. 20004

(202) 862-4400 (202) 783-4444

* Counsel of Record Counsel for Petitioner

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether the Federal Service Labor-Management

Relations Statute, 5 U.S.C. § 7101, et seg. (FSLMRS),

obligates an agency to bargain over union-initiated mid-

term proposals, where the subject matter of the proposals

is not covered by the term agreement, and the union has

not waived its right to bargain.

2. Whether, in any event, the FSLMRS requires an

agency to bargain over a contract provision that would

obligate it to engage in negotiations, during the term of

the agreement, over union-initiated proposals.

(i)

STATUTORY PROVISIONS INVOLVED

REASONS FOR GRANTING THE PETITION

THE COURT OF APPEALS’ DECISION

PRESENTS A CLEAR CONFLICT WITH

THE D.C. CIRCUIT REGARDING UNION.

INITIATED MIDTERM BARGAINING ._.

THE QUESTION PRESENTED IS IMPOR-

TANT: RESOLUTION OF THE CONFLICT

BETWEEN THE CIRCUITS !S ESSENTIAL

TO ENSURE RATIONAL ADMINISTRATION

OF THE STATUTE AND TO PRESERVE

THE BALANCED SCHEME OF COLLEC-

TIVE BARGAINING THAT CONGRESS IN-

THE DECISION OF THE COURT OF AP-

PEALS IS ERRONEOUS...

A. i einentek Wteniier at Otomo? on

Statute and Fundamental! Principles of Labor

B. In Any Event, A Contract Proposal Author-

izing Union-Initiated Midterm Bargaining Is

Within A Federal Employer's peucneatad

Obligation to Bargain

(iii)

oa ee we

TABLE OF CONTENTS—Continued

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lla

TABLE OF AUTHORITIES

Cases : Page

American Federation of Government Employees v.

FLRA, 750 F.2d 143 (D.C. Cir. 1984) ........ 10, 11»

Army and Air Force Exchange Service, 5 F.L.R.C.

EE 12

Bureau of Alcohol, Tobacco and Firearms v. FLRA,

464 U.S. 89 (1983) ........... &, 9, 12, 16

Chevron, U.S.A., Ine. ¥. Nature! Resources Defense

Council, 467 U.S. 837 (1984) . 14

Department of the Treasury end US. ‘Customs + v.

FLRA, 836 F.2d 1381 (D.C. Cir. 1988) ... ‘. 16

FLRA v. Internal Revenue Service, 838 F.2d 567

(D.C. Cir, 1988) . 15

Internal Revenue Service end NTEU, 29 F.LRA.

162 (1987) ... a }

Library of Congress v. FLRA, 699 F.2d 1280 (D.C.

Cir. 1983) .. 9, 12, 16

Mead Corp. v. “NLRB, 697 Fad 1013 (11th ‘Cir.

a 13

National Treasury Employece Union and Dept. of

the Treasury, 21 FLRA 6 (1986), enforced, 836

F.2d 1381 (D.C. Cir. 1988) 16

National Treasury Employees Union v, FLRA, 810

F.2d 295 (D.C. Cir. 1987) .............. _.... peasim

National Treasury Employees Union v. FLRA, 691

F.2d 6638 (D.C. Cir. 1982) ........................... ie 11,12

NL Industries, Inc. v. NLRB, 536 F.2d 786 (8th

Cir. 1976) ... ee 13, 15

NLRB v. Jacobs Menufecturing Co, 196 F.2d 680

(2d Cir. 1952) .. | 12, 13, 14

Social Security Administration r. _ PLRA, 956 F.2d

1280 (4th Cir. 1992) passim

US. Dept. of Health and Human Services, 47

F.L.R.A. 1004 (1993) ....... 15

United States Dept. of Bnerey v. FLRA, 196 F.3d

1158 (4th Cir. 1997) . passim

United States Department of Energy, Washington,

D.C. and AFGE Local 1995, AFL-CIO, 51

F.LR.A. 124 (1995), rev'd, 106 F.3d 1158 (4th

TABLE OF AUTHORITIES—Continued

Statutes and Regulations : Page

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28 U.S.C. § 1261(1) _..... Pe ae een se 2

4. lll ee 13

Miscellaneous :

124 Cong. Rec. H 9633 (daily ed. Sept. 13, 1978)

1978 See eH ee Oe ee Oe © ESE = SESS SSS SESS THEE ESSE HORSE FEE H SH COE REE ESE SEES ESS 10

S. Rep. No. 969, 95th Cong., 2d Sess. (1978) re-

printed in Legislative History of the Federal

Service Labor-Management Relations Statute,

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NATIONAL FEDERATION OF FEDERAL EMPLOYEES,

Loca. 1309,

Vv.

Untrep States DEPARTMENT OF THE INTERIOR,

WasHINGTON, D.C.,

U.S. Greo.ooicat Survey, RESTON, VIRGINIA,

AND FEDERAL LaBorR RELATIONS AUTHORITY

Petitioner,

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

The National Federation of Federal Employecs, Local

1309, respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Fourth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

not yet reported. The opinion of the Federal Labor

tions Authority (Pet. App. B) is reported at 52 F.L.R.A.

475 (1996).

A) is

JURISDICTION

The court of appeals entered its judgment on October

31, 1997 (Pet. App. la-10a). The jurisdiction of this

Court is invoked under 28 U.S.C. 1251(1).

STATUTORY PROVISIONS INVOLVED

The pertinent provisions of the Federal Service Labor-

Management Relations Statute, 5 U.S.C. 7101, ef seq.,

are reproduced, infra, at Pet. App. C.

STATEMENT

1. The petitioner, National Federation of Federal Em-

ployees, Local 1309 (the Union), is the exclusive bargain-

ing representative of certain employees of the United

States Geological Survey of the Department of the Interior

(the Survey). During negotiation of a collective bargain-

ing agreement, the Union proposed that the Survey agree

that, during the term of the agreement, it would be obli-

gated “to negotiate on any negotiable matters not covered

by the provisions of this agreement.” Pet. App. 3a.

The Survey contended (Pet. App. 3a-4a) that the pro-

posal was not within its duty to bargain. In so contend-

ing, it relied upon the Fourth Circuit's rejection of a hold-

ing of the Federal Labor Relations Authority (FLRA or

the Authority) that the Federal Service Labor-Management

Relations Statute, 5 U.S.C. 7101 ef seq. (the Statute or

the FSLMRS), requires an agency to bargain over union-

initiated midterm proposals. Social Security Administra-

a v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v.

RA).

The Union then commenced unfair labor practice pro-

ceedings before the FLRA. The Authority, relying on its

previous decisions and the decision of the D.C. Circuit in

National Treasury Employees Union v. FLRA, 810 F.2d

295 (D.C. Cir. 1987) (NTEU v. FLRA). held that the

Survey had violated the Statute in refusing to negotiate.

Pet. App. lla-23a. The FLRA noted (id. at 17a) that

it had previously rejected the Fourth Circuit's SSA deci-

sion. In addition, it distinguished SSA from this case (id.

at 17a-18a) because SSA had only held that there was no

Statutory obligation to bargain midterm; the court had not

reached the issue of whether a union could negotiate for

that right.

2. The Survey petitioned for review in the Fourth

SSA and a recent decision in United States Dept. of

Energy v. FLRA, 106 F.3d 1158 (4th Cir, 1997) (DOE

v. FLRA). Pet. App. 8a-10a.

a. In SSA, the Fourth Circuit had held, directly in

conflict with the D.C. Circuit’s decision in NTEU vy.

FLRA, supra, that the Statute imposes no obligation upon

agencies to bargain midterm over union-initiated bargain-

ing proposals. While acknowledging that a “textual analy-

sis” of the Statute did not yield a “definitive” answer to the

each teeeh'dls ie ek «ai te

report that had accompanied a version of the

did not become law. 956 F.2d at 1284-

1285 disag :

opinion of the D.C. Circuit—that the Senate report in

term bargaining. 956 F.2d at 1286-1288. The Fourth

Circuit stated that the application of the precedent to the

federal sector was inconsistent with the Statute’s policy of

promoting an “effective and efficient” government. /d.

at 1289.

b. In DOE, the Fourth Circuit extended the rationale

of SSA, concluding that it actually precluded a federal

agency even from negotiating over a contract provision

that would permit union-initiated midterm bargaining.

The FLRA had found the proposal negotiable, reasoning

that SSA addressed only whether the Statute imposed on

agencies an obligation to engage in union-initiated mid-

term bargaining, but left open whether a union could

obtain such a right through bargaining. United States

Department of Energy, Washington, D.C. and AFGE

Local 1995, AFL-CIO, 51 F.L.R.A. 124, 127-128 (1995),

rev'd, 106 F.3d 1158 (4th Cir. 1997).

The Fourth Circuit found this distinction unpersuasive

on the grounds that it would “vitiate SSA.” DOE, 106

F.3d at 1163. The court explained that because the

Federal Service Impasses Panel (FSIP or the Panel) fol-

lowed the Authority position regarding midterm bargain-

ing, the Panel would invariably impose midterm bar-

gaining clauses on federal agencies and thus permit unions

to “circumvent SSA.” Id. at 1164.’

c. In the present case, the court of appeals rejected

the efforts of the Authority and the intervenor Union to

distinguish SSA and DOE, the rationales of which it found

controlling. Pet. App. 8a-10a. Candidly acknowledging

the formidable difficulties created by the conflict between

it and the D.C. Circuit regarding union-initiated midterm

' The Statute provides that if labor and management are unable

to reach agreement, they may take their impasse to the Panel.

5 U.S.C. 7119. The FSIP is authorized to “take whatever action

is necessary and not inconsistent” with the Statute to resolve the

impasse, including imposition of contract language on the parties.

Id. at 7119(c) (5) (A) (iii).

bargaining, the court commented that “recourse for resolu-

tion must be sought elsewhere.” /d. at 10a.

REASONS FOR GRANTING THE PETITION

As the Fourth Circuit expressly recognized (Pet. App.

4a), its ruling in this case and its “controlling” decision

in SSA v. FLRA present a “clear conflict” with the D.C.

Circuit's holding in NTEU v. FLRA on the issue of

whether a federal employer-agency is statutorily obligated

to engage in midterm bargaining regarding union-initiated

proposals. Indeed, as a result of its extension of SSA’s

rationale in DOE, in the Fourth Circuit a federal agency

is actually prohibited from agreeing to do that which the

D.C. Circuit says the statute requires. The Fourth Circuit

{.ankly acknowledged the substantial “difficulties” (id.

at 10a) which the conflicting decisions present for the

rational administration of the Statute. For that reason,

and because the Fourth Circuit has incorrectly resolved

an issue of great significance to the federal sector labor

relations scheme, this Court should grant review.

I. THE COURT OF APPEALS’ DECISION PRESENTS

A CLEAR CONFLICT WITH THE D.C. CIRCUIT

REGARDING UNION-INITIATED MIDTERM BAR-

GAINING

More than ten years ago, the D.C. Circuit ruled that—

even absent a provision in a term agreement requiring

such bargaining—federal agency employers have a statu-

tory obligation to bargain over union-initiated proposals

concerning matters that are not covered by the parties’

collective bargaining agreement. In NTEU v. FLRA, the

court, per Judges Re, Robinson and then-Judge, now

Justice, Ruth B. Ginsburg, held that the Statute’s lan-

guage, design and history and “basic principles of labor

law” (810 F.2d at 301) established such a bargaining

obligation. The court set aside the FLRA’s contrary view,

and the Authority subsequently acquiesced in the ruling of

the D.C. Circuit. See Internal Revenue Service and

NTEU, 29 F.L.R.A. 162 (1987) (holding that manage-

ment has a duty to bargain about union midterm pro-

posals where the subject matter is not contained in the

collective agreement and where the union has not waived

its right to bargain over the subject matter in question).

Some five years later, the Fourth Circuit in SSA upset

the repose of the law regarding union-initiated midterm

bargaining when it explicitly rejected the D.C. Circuit's

NTEU holding. The Fourth Circuit then took SSA’s

rationale a step further when it revisited the issue of

union-initiated midterm bargaining in DOE, and refused

enforcement of an FLRA decision finding negotiable a

proposal that would have permitted union-initiated mid-

term bargaining. The court concluded that its decision

in SSA “compel[led]” it to find that the union's proposal

was not negotiable. DOE, 106 F.3d 1158. Most recently,

in the instant case, the Fourth Circuit, citing SSA, again

determined that a union proposal that would have pro-

vided for union-initiated midterm bargaining was non-

negotiable.

As the court of appeals itself plainly recognized (Pet.

App. 10a), its decision in this case graphically underscores

the profound conflict, first enunciated in SSA, between the

Fourth Circuit and the D.C. Circuit on the issue of union-

initiated midterm bargaining. As shown below, this

“clear conflict” (id. at 4a) cannot be abided: its existence

disrupts the administration of the Statute and materially

distorts the federal sector collective bargaining scheme

crafted by Congress.

The D.C. Circuit has not specifically addressed whether the

Statute requires employer-agencies to negotiate over a proposal

that would create a contractual obligation to bargain regarding

union-initiated midterm proposals, Having determined, however,

that unions have a statutory right to engage in midterm bargaining

over proposals that they initiate, the court would necessarily agree

that a contract clause providing for such bargaining was negotiable.

Il. THE QUESTION PRESENTED IS IMPORTANT:

RESOLUTION OF THE CONFLICT BETWEEN THE

CIRCUITS IS ESSENTIAL TO ENSURE RATIONAL

ADMINISTRATION OF THE STATUTE AND TO

PRESERVE THE BALANCED SCHEME OF COL-

LECTIVE BARGAINING THAT CONGRESS IN-

TENDED

A. The conflict between the Fourth Circuit and the

D.C. Circuit is thwarting rational administration of the

Statute. The Statute contains a multiple venue provision

stipulating that review of Authority’s decisions may be

sought in the circuit where the aggricved party resides or

transacts business, or in the D.C. Circuit. 5 U.S.C.

7123(a). Where, as here, there is an irreconcilable cir-

cuit split regarding the important issue of union-initiated

midterm bargaining, operation of this venue provision

creates inevitable disarray with respect to the Statute’s

federal sector labor relations scheme.

Specifically, as the FLRA has explained to the Fourth

Circuit (see DOE, 106 F.3d at 1167-68), if the Authority

were to acquiesce now in the Fourth Circuit’s view of

union-initiated midterm bargaining, an aggrieved union

could legitimately seek review in the D.C. Circuit and

readily establish that the FLRA had failed tu comply with

that court’s position regarding midterm bargaining. Simi-

larly, if the FLRA continues to follow NTEU, the federal

agency, which likely transacts business throughout the

country, could then seek review in the Fourth Circuit,

which has unequivocally repudiated the holding of the

NTEU court.

The existence of this kind of ping-pong review creates

an untenable situation that can only be resolved by this

Court. The FLRA is in the “difficult position” (DOE,

i106 F.3d at 1162, n.8) of not knowing which circuit

court will review-its decision. Most-important, “irrespec-

tive of the course chosen, [the FLRA] would find itself in

the position of not complying with a previous decision”

of a federal circuit court. Jd. at 1167-68.

B. The question presented is important also because

the Fourth Circuit’s decision would upset the careful

balance Congress struck in shaping the Statute’s labor-

management scheme and undermine its clear goal of

significantly strengthening “the position of public em-

ployee unions.” Bureau of Alcohol, Tobacco and Fire-

arms v. FLRA, 464 U.S. 89, 92 (BATF v. FLRA). The

Fourth Circuit’s conclusion—that union-initiated midterm

proposals, but not management-instigated changes, are a

source of instability at the workplace (SSA, 956 F.2d at

1287-90 )—cannot be squared with Congress’ fundamental

goal of creating greater equality between labor and man-

agement. See, e.g., NTEU, 810 F.2d at 300. Indeed, the

Fourth Circuit’s decision disables the employees’ chosen

representative from participating in the resolution of im-

portant issues that arise unexpectedly in the workplace.

Under SSA and DOE, even if a vital unanticipated ques-

tion arises during the term of the agreement—discovery

of asbestos in the workplace, for example—the union can-

not require the employer to bargain over the steps it must

take to abate the serious health hazard its constituents

face.

A collective bargaining regime that so hobbles the role

of the employees’ representative would bear little resem-

blance to the labor-relations framework Congress so care-

fully designed. Guidance from this Court is acutely

needed on the important question whether Congress’

federal sector labor relations plan should be dramatically

recast in the way prescribed by the Fourth Circuit.

Ill. THE DECISION OF THE COURT OF APPEALS IS

ERRONEOUS

‘A. The Language, Structure and Policies of the Stat-

ute and Fundamental Principles of Labor Law

Demonstrate that Federal Employers Are Obligated

to Bargain Over Union-Initiated Proposals.

The premise underlying the Fourth Circuit’s midterm

bargaining trilogy—that federal employer agencies have

no obligation, under any circumstances, to negotiate over

union-initiated midterm bargaining proposals—reveals a

fundamental misapprehension of the Statute’s language

and design. It is also contrary to the policies that underlie

the Statute and basic principles of labor law.

1. In SSA, the Fourth Circuit concluded that the Stat-

ute “seems to contemplate” that an employer’s bargaining

obligation extends to “only one, basic, agreement.” 956

F.2d at 1284. As noted, however, this Court has observed

that in fashioning the Statute, “Congress unquestionably

intended to strengthen the position of federal unions . . .”.

BATF, 464 U.S. at 107. That Congress affirmatively

intended the Statute’s scheme to promote collective bar-

gaining is made clear by its explicit findings that bar-

gaining “safeguards the public interest” and “contributes

to the effective conduct of public business.” 5 U.S.C.

7101(a)(1)(A), (B).

The Statute’s language and scheme establish that, apart

from its expressly stated exceptions, the parties’ duty to

bargain is ongoing through the life of a contract and

encompasses matters that may arise during the term of

an agreement. Its framework is best understood as creat-

ing a broadly defined duty to bargain over conditions of

employment—a duty that is subject only to express and

narrow statutory exceptions.* Thus, the Statute extends

3 See Library of Congress v. FLRA, 699 F.2d 1280, 1285 (D.C. Cir.

1983). Representative Udall, the drafter of the bill that ultimately

became the Act, described the management rights provision, for

the duty to bargain to all “conditions of employment,” a

term expansively defined to include all personnel policies,

practices, and matters affecting working conditions. 5

U.S.C. 7103(a)(14). The Statute contains no exceptions

relieving an employer of this obligation during the term

of a master agreement.

That the bargaining obligation extends beyond negotia-

tion of one master agreement is shown by the statute's

definition of “collective bargaining,” which requires, with-

out any temporal restriction, that labor and management

“meet at reasonable times” for the purpose of arriving at

agreements regarding conditions of employment. 5 U.S.C.

7103(a)(12). Further, the Act imposes on labor and

management the obligatiou to meet in good faith to reach

“collective bargaining agreements.” 5 U.S.C. 7114(a)(1)

(emphasis added) (reference to plural agreements ).*

The D.C. Circuit's decision in American Federation of

Government Employees v. FLRA, 750 F.2d 143 (D.C.

Cir. 1984), fortifies the conclusion that the Statute in-

cludes no temporal limitations regarding the parties’ duty

to bargain. There, the court underscored that neither the

broad statutory definition of “collective bargaining,” nor

example, as something “to be treated narrowly as an exception to the

general obligation to bargain.” 124 Cong. Rec. H 9633 (daily ed.

Sept. 18, 1978), reprinted in Legislative History of the Federal

Service Labor-Management Relations Statute, Title VII of the Civil

Service Reform Act of 1978 (hereafter cited as “Leg. Hist.”), at

924. Where Congress wished to limit bargaining, it expressly did

so. See, e.g., 5 U.S.C. 7106, 7117.

‘In SSA, the court of appeals inferred support for its holding

from 5 U.S.C. 7106(b)(2) and (3). 956 F.2d at 1284. The court

asserted that those provisions showed that when Congress wanted

to create anv kind of midterm bargaining obligation it “spelled out”

when it wanted it to occur. Jd. The court misconstrued the provi-

sions identified; their purpose was to impose limitations »» the

exercise of an arency’s management rights. There is no indication

that Congress ever contemplated that it was setting the parameters

of the obligation of labor and management to engage in midterm

bargaining.

any of the other “relevant definitional sections of the Act”

(750 F.2d at 146) make any distinctions between basic

collective bargaining agreements and local agreements.

Similarly, the Statute does not between basic

agreements and midterm agreements. In short, the plain

of the pertinent statutory provisions does not even

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2. The Fourth Circuit also erred in finding its position

supported by a cryptic excerpt from a Senate Report that

ied an earlier version of the FSLMRS. See 956

F.2d at 1284-1285. The passage upon which the court

relied stated that, under the Act, labor and

leading

basic collective bargaining agreement.” S. Rep. No. 969,

9Sth Cong., 2d Sess. 104, reprinted in Legislative History

of the Federal Service Labor-Management Relations Stat-

ute, Title VII of the Civil Service Reform Act of 1978

(hereafter cited as “Leg. Hist.”), at 764.

“ge as the SSA court suggested. 956 F.2d at 1284-

faa version of to Strate, It sate

gree after the National Labor Relations Act (

BATF, 464 US. at 92-93; NTEU, 810 F.2d at

is now commonplace for the FLRA and the reviewing

circuit courts to look to private sector case

ance when appropriate. See NTEU, 810 F.2d

Library of Congress, 699 F.2d at 1286.

The seminal private sector case is NLRB v. Jacobs

Manufacturing Co., 196 F.2d 680 (2d Cir. 1952), which

has since been recognized as establishing an integral ele-

‘In taking issue with the NTEU court's rejection of reliance

on the Senate bill, the Fourth Circuit never came to terms with

the materially different approaches to collective bargaining that

were represented by the Senate bill and the versions offered by the

House, including the one that became law. See SSA, 956 F.2d at

1285. If Congress had intended the language of the Senate Report

to prevail, it is reasonable to believe that it would have said so in

the Confererce Report.

The court of appeals was also mistaken in suggesting (SSA, 956

F.2d at 1285-86) that union-initiated midterm bargaining had been

proscribed under the regime of Executive Order 11491. See Army

and Air Foree Exchange Service, 5 F.L.R.C. 167 (1977) (clarify-

ing that the administrative decision under review did not turn on

agency's claim that it had no obligation to hargain midterm regard-

ing union proposal).

term ining comparable to section 8(d) of the

NLRA, SSA, 956 F.2d at 1287, citing 29 U.S.C. 158(d)

(stating in pertinent part that neither party is required to

engage in midterm bargaining over matters “contained in”

the collective bargaining agreement). Jacobs, of course,

held that, given its narrow nature, section 8(d) did not

relieve the employer of its duty to negotiate as “to sub-

jects which were neither discussed nor embodied in any

The absence of a provision similar to section 8(d) is

of no consequence. The corollary of the Jacobs principle

—that the duty to engage in midterm bargaining regard-

ing union-initiated proposals duty does not extend to mat-

ters contained in or “covered by” the parties’ collective

agreement—is so basic that it is not at all surprising that

Congress did not spell it out in the FSLMRS." The Fourth

* See e.g. NL Industries Inc. v. NLRB, 536 F.2d 786 (8th Cir.

1976) (noting that the holding of Jecods is so well integrated into

the fabric of labor law that it is rarely challenged) and Mead v.

NLRB, 697 F.2d 1013 (11th Cir. 1983).

* The FLRA's case law is replete with applications of the “covered-

by” principle. See, e.g. Internal Revenue Serv. and NTEU, 29

F.L.R.A. 162 (1987).

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©The federal ecctor experience is thus consistent with that in the

private sector. The Eighth Circuit, in endorsing the Jacobs rule,

stressed that a mutual right to engage in midterm barraining

actually enhances stability by providing the parties “flexibility” to

deal with such “future contingencies” as changing economic \, tech-

nology and working conditions. NL /ndustries v. NLRB, 536 F.2d

at 790, n.5.

The Fourth Circuit's greatly exaggerated view of the negative

consequences of midterm bargaining also failed to appreciate that

management need not always negotiate with a union during the

term of the agreement. For example, the parties could agree to

a “zipper clause” that would serve as the union's waiver of its

right to initiate midterm proposals. See, ¢.g.. FLRA v. Internal

Revenue Service, 838 F.2d 567 (D.C. Cir. 1988) (concurring opinion

by Judge Edwards explaining the availability of such clauses in the

federal sector). Nor would management have to bargain over mat-

ters “covered by” the parties’ term agreement. Contrary to the

Fourth Circuit's erroneous and now dated suggestion in SSA (956

F.2d at 1289), the “covered by” doctrine is an integral element of

the federal sector labor relations scheme. See, ¢.o.. U.S. Dept. of

Health and Human Services, 47 F.L.R.A. 1004 (1993).

B. In Any Event, A Contract Proposal Authorizing

Union-Initiated Midterm Bargaining Is Within A

Federal Employer's Statutory Obligation to Bargain

Even if the Statute does not confer a right on unions

to initiate midterm bargaining, a union proposal—such as

that at issue in this case—that would authorize such

tiations is within the federal employer's obligation to bar-

gain. In other words, the Statute does not, contrary to

the holding of the court below, bar unions from attempt-

ing to negotiate for the right to engage in union-initiated

midterm bargaining.”

* See e.g., Librery of Congress v. FLRA, 699 F.2d at 1289 (reeoe-

nizing that barrine negotiations over working conditions breeds

“frustration” and “disharmony” among employees).

Indeed, this Court has recognized that a union may barrain

for a right that is not conferred by the Statute. In BATF, the

Court held that, although union negotiators were not entitled t»

travel and per diem payments under the Statute, “unions may pre-

sumably negotiate for such payments through collective bargainine.”

BATF, 464 U.S. at 107, n.17. The D.C. Circuit subsequently

agreed with the FLRA that a contract proposal for travel and per

diem payments fell within the duty to bargain because it did not

conflict with applicable law or regulation. National Treasury Em-

plowees Union and Dept. of the Treasury, 21 FLRA 6 (1986),

enforced, 836 F.2d 1381 (D.C. Cir. 1988).

As noted, under the Statute, the ee os

are ke Gas 2 lene ae (5

U.S.C. 7106(a)) or are inconsistent with law, govern-

mem-aide cagmations, or cgay sepiiations fer which

compelling need exists. 5 USC 7117(a). A con-

censteal povvisien hiigating on agency to aagetlats over

union-initiated proposals does not fall within any of these

exceptions; it is, accordingly, a mandatory subject of

bargaining.

The Fourth Circuit's conclusion in DOE that it would

be “inconsistent” with the Statute to require bargaining

over such a provision (106 F.3d at 1164) is plainly

erroneous. First, the court of appeals never identified

any law or regulation that would preclude bargaining

over a proposal secking the right to midterm bargaining.

Instead, it grounded its decision on its view of what con-

stitutes an “effective and efficient government.” A claim

that the adoption of a proposal is inconsistent with “effec-

tive and efficient” government goes to its merits, not its

negotiability. Equally important, as shown above, the

Fourth Circuit's “effective and efficient” government anal-

ysis cannot withstand examination.

Ironically, the court's position would bar an agency

from agreeing to a contract provision authorizing union-

initiated midterm bargaining even when it wanted to do so.

There are many situations where union-initiated midterm

proposals would enhance management's interest in flexi-

bility. Thus, during term negotiations. management may

wish to change a condition of employment—it may, for

example, be interested in a trial period of different start-

ing and quitting times. The union might well be amenable

to considering the change if it believed it would have an

opportunity to make a midterm proposal modifying the

arrangement. Without that option, however, the employ-

ees’ representative may be strongly disinclined to agree to

change. In short, management's interest in experimenting

regarding conditions of employment would be undermined

by the Fourth’s Circuit’s rigid view of midterm bargaining

—a result that would hardly serve an “effective and effi-

cient” government.

CONCLUSION

The petition for a writ of certiorari should be granted.

Of Counsel:

LESLIE DEAK

Staff Attorney

NATIONAL FEDERATION OF

FEDERAL EMPLOYEES

1016 16th Street, N.W.

Suite 300

Washington, D.C. 20036

(202) 862-4400

* Counsel of Record

January 1998

Respectfully submitted,

GREGORY O’DUDEN *

General Counsel

ELAINE KAPLAN

Deputy Genera! Counsel

BARBARA A. ATKIN

Associate Genera! Counsel

for Appellate Litigation

NATIONAL TREASURY

EMPLOYEES UNION

901 E Street, N.W.

Suite 600

Washington, D.C. 20004

(202) 783-4444

Counsel for Petitioner

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APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2855

UNITED STATES DEPARTMENT OF THE INTERIOR,

Washington, D.C.; U.S. GEOLOGICAL SURVEY,

Reston, Virginia,

Vv.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent,

Petitioners,

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

Loca. 1309,

Intervenor.

No. 97-1135

FEDERAL LABOR RELATIONS AUTHORITY,

Petitioner,

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

Loca. 1309,

Vv.

Intervenor,

UNITED STATES DEPARTMENT OF THE INTERIOR,

Washington, D.C.; U.S. GEOLOGICAL SURVEY,

Reston, Virginia,

Respondents.

On Petition for Review and Cross-application for

Enforcement of an Order of the

Federal Labor Relations Authority.

(WA-CA-30451)

Argued: October |, 1997

Decided: October 31, 1997

Before RUSSELL and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judges.

OPINION

PHILLIPS, Senior Circuit Judge:

The U.S. Geological Survey, of the Department of the

Interior, (“Survey”) petitions for review of a Federal

Labor Relations Authority (“Authority”) order finding

that the Survey committed an unfair labor practice in

violation of the Federal Service Labor-Management Rela-

tions Act, 5 U.S.C. § 7116(a)(1) and (5) (1994). The

Authority, joined by the National Federation of Federal

Employees Local 1309 (“the Union”) as intervenor,

cross-petitions for enforcement of its order which had

found a violation in the Survey’s refusal to negotiate over

a union-initiated proposal to include in a collective bar-

gaining agreement a requirement that it bargain over

union-initiated midterm proposals. We agree, based upon

clear circuit precedent, with the Survey, and deny enforce-

ment.

The Federal Service Labor-Management Relations Act

(“Labor Act” or “FLSMRA”), 5 U.S.C.A. § 7101 ef seq.

(West Supp. 1997), establishes a comprehensive federal

regulatory scheme for collective bargaining between fed-

eral employers and their employees. The Labor Act rec-

ognizes the right of federal employees to collectively or-

ganize, certify exclusive representatives, and be bargained

with in good faith. See §7114(a)(1), 7116. The Labor

Act affirmatively requires federal employers to negotiate

in good faith and failure to do so is an unfair labor prac-

tice. See § 7116(a)(5). Federal employees are pro-

hibited by the Act from striking and comparable actions,

§ 7116(b)(7), their recourse being by action charging

unfair labor practices brought against the Authority. See

$§ 7105(a)(2)(G) & 7118(a)(6). The duty to bargain

in good faith does not, however, extend to matters “in-

consistent with any Federal law or any Government-wide

rule or regulation.” § 7117(a)(1).

Where both parties negotiate in good faith but fail to

reach an agreement, either party may refer the dispute

to the Federal Services Impasses Panel (“FSIP” or “Im-

passes Panel”). See § 7119(b)(1). The FSIP is a divi-

sion of the Authority and “[i]f the parties do not arrive

at a settlement after assistance by the Panel . . . the Panel

may ... take whatever action is necessary and not in-

consistent with [the Statute] to resolve the impasse.”

§ 7119(c)(5)(B) (iii). The Panel's binding arbitration

authority extends to any negotiable proposal. See Social

Security Administration v. FLRA, 956 F.2d 1280, 1282

(4th Cir. 1992). Though agency heads have the au-

thority to disapprove a provision, disapproval is subject

to judicial modification and can constitute an unfair labor

practice. See §§ 7114(c), 7116(a)(6), 7118.

The facts of this proceeding are straightforward and

not in dispute. During a regular collective bargaining

process between the Union and the Survey, the Union pro-

posed for inclusion in the bargaining agreement the fol-

lowing cleuse:

The Union may request and the Employer will be

obligated to negotiate on any negotiable matters not

covered by the provisions of this agreement.

JA 71.

Relying on our decision in Social Security Administra-

tion v. FLRA, 956 F.2d 1280 (4th Cir. 1992) [herein-

after SSA], in which we had held that the Labor Act does

not by its terms require federal agencies to participate in

union initiated midterm bargaining, the Survey declared

this proposal nonnegotiable. The Union then govt a com-

plaint with the Authority alleging, inter alia, that in de-

clining to negotiate the proposal, the Survey comm camels

an unfair labor practice in violation of 5 U.S.C. § 7116

(a)(1), (5). After waiver of an administrative law judge

hearing and stipulation of the facts, the Authority—rely-

ing on the D.C. Circuit's opinion in National Treasury

Employees Union v. FLRA, 810 F.2d 295 (D.C. Cir.

1987 )—ordered the Survey to bargain over the proposal.

In rejecting Survey's reliance on SSA, the Authority

opined that: (1) SSA only held that there was no statu-

tory obligation to bargain midterm and “did not address

whether a union could bargain for that right” and (2) in

following longstanding principles of the agency, it was an

unfair labor practice for an agency to refuse to bargain

over a proposal that is “substantially identical” to one

previously found negotiable. See JA 74 (citing U.S. De-

partment of Energy, 51 FLRA 124 (1995)).

The Survey continues to rely on SSA and cites our

recent decision in United States Dept. of Energy v. FLRA,

106 F.3d 1158 (4th Cir. 1997), in support of its refusal

to negotiate. Because our decisions in SSA and Fnergy

control decision here and are dispositive of the issue, we

agree with the Survey and deny enforcement.

IT.

Underlying the conflicting contentions of the parties in

this case is a clear conflict on the issue of union-initiated

midterm bargaining proposals between this circuit and the

D.C. Circuit. The D.C. Circuit's position is that taken in

1985 in National Treasury Employees Union v. FLRA,

810 F.2d 295 (D.C. Cir. 1985) [hereinafter NTEU]. In

NTEU, the D.C. Circuit refused to enforce the Authority's

decision in Internal Revenue Service (IRS 1), 17 FLRA

731, 736 (1985), that there was no obligation to bargain

over union-initiated midterm proposals. Rejecting this

position, the D.C. Circuit held that the obligation to bar-

g . :

of Gov't Employees v. FLRA, 750 F.2d-143, 148 (D.C.

Cir. 1984)). On remand, the Authority adopted the

ute requires an agency to bargain during the term of

a collective bargaining agreement on negotiable

union proposals concerning matters which are not

contained in the agreement unless the union has

waived its right to bargain about the subject matter

involved.

Internal Revenue Service (IRS 11), 29 FLRA 162, 166

(1987).

Some five years later, this court held to the contrary

in SSA. Judge Wilkinson's opinion for the SSA court

concluded that the Authority’s mandatory position on mid-

term bargaining was at odds with the Labor Act. Relying

on the statutory language and legislative history, the SSA

court held that mandatory midterm bargaining would

“contravene many of the basic purposes” of the Labor

Act (id. at 1288) and as a result the Authority's position

was “not in accordance with law.” /d. at 1290 (quoting

5 U.S.C. §§ 706(2)(A), 7123(c)).

The Authority later had an opportunity to evaluate the

reach of SSA in Department of Energy, Washington, D.C.,

51 FLRA 124 (1995). In Energy, the affected agency

had disapproved a bargaining agreement clause imposed

by the Impasse Panel that would have required it to

bargain in good faith on union-initiated midterm pro-

posals.* In finding the agency disapproval an unfair labor

! The clause mandated by the Panel provided :

The F-mplover will be obligated to bargain in good faith on any

negotiable Union-initiated proposals concerning matters that

practice, the Authority distinguished SSA because there

“the Fourth Circuit did not address the negotiability of a

provision for union-initiated midterm bargaining; the

court addressed only whether, apart from any contractual

obligations, an agency is required under the Statute to

engage in such bargaining.” Jd. at 127. Because a mid-

term bargaining provision was negotiable and consistent

with the law, disapproval of the provision imposed by the

Panel violated §§ 7116(a)(1) and (a)(6). Id.

An enforcement petition then filed in Energy provided

this circuit with the opportunity to pass on the Author-

ity’s attempt to distinguish SSA. In United States Depart-

ment of Energy v. Federal Labor Relations Authority,

106 F.3d 1158 (4th Cir. 1997), we refused to enforce

the Authority's order and flatly rejected its position that

SSA did not control. While agreeing “that the question

of whether the FSLMRA imposes a statutory duty differs

from the question of whether an agency must negotiate

with a union regarding the inclusion of a clause in a col-

lective bargaining agreement,” we found the distinction

“more apparent than real.” /d. at 1163. “[NJot only is

union-initiated midterm bargaining not mandated by the

FSLMRA, but [it is] also . . . contrary to the FSLMRA.”

Id. (citation omitted) (emphasis in original). The En-

ergy court explicitly found such proposals nonnegotiable,

reasoning that if this type of provision were negotiable it

“would effectively vitiate SSA.” Id. According to the

court:

Because the Impasses Panel adheres to the position

of the Authority that the Department has a statutory

duty to engage in midterm bargaining, we cannot

envision a case in which the Impasses Panel would

are not contained in or covered by the collective bargaining

agreement, unless the Union has waived its right to berrain

about the subject matter involved.

United States Dey... of Energy v. FLRA, 106 F.3d 1158, 1161 (4th

Cir. 1997).

fail to impose upon an agency a midterm bargaining

clause like the one before us. . . . Thus, a union

could circumvent SSA by the mere expedient of nego-

tiating to impasse on a midterm bargaining provision,

essentially requiring an agency to bargain midterm

over union proposals despite our determination that

such a requirement is contrary to FSLMRA.

Id. at 1163-64.

IV.

This case now requires us to assess whether SSA and

Energy similarly require rejection of the Authority's posi-

tion that it may order an agency to negotiate over whether

it will negotiate over union-initiated midterm proposals.

The first question is the deference we owe to the Au-

thority’s formal position. The basic principle of course

is that an agency ruling may be set aside only if it is

“arbitrary, capricious, an abuse of discretion or otherwise

not in accordance with law.” 5 U.S.C. § 7123(c). Where

the agency ruling is based upon application of a governing

Statute and “the statute is silent or ambiguous with respect

to the specific issue, the question for the court is whether

the agency’s answer is based on a permissible construction

of the statute.” Chevron U.S.A. v. Natural Res. Def.

Council, 467 U.S. 837, 843 (1984) (footnote omitted).

Here, however, we deal not with the Agency's interpreta-

tion of a statutory provision not previously interpreted

by this court, but with its interpretation of our prior in-

terpretation of the relevant statutory provisions. In such

a situation, “[o]nce we have determined a statute’s mean-

ing, we adhere to our ruling under the doctrine of stare

decisis, and we assess an agency's later interpretation of

the statute against that settled law.” Neal v. United

States, 116 S. Ct. 763, 768-69 (1996) (citations omitted).

: B.

Confronted with this principle governing our judicial

review, the Authority seeks to distinguish the issue we

decided, as a matter of statutory interpretation, in Energy

from that presented here, hence to persuade us that our

interpretation in Energy does not bind us here as a matter

of stare decisis. Alternatively, it contends that the reason-

ing in Energy that may seem to reach the issue here is

dicta and so should not be thought to bind us. We dis-

agree on both points.

The Authority argues that the procedural posture of

Energy distinguishes the statutory interpretation issue there

from that confronted here. “[{U]nlike the case in Energy

v. FLRA, where the obligation to bargain midterm was

imposed on the agency, here the Authority has only or-

dered the Survey to bargain over whether it will entertain

union-initiated proposals during the term of the agree-

ment.” Respondent’s brief at 11. The Authority's argu-

ment is, in short, that while Energy involved an Impasses

Panel-imposed requirement to bargain midterm, this case

involves a requirement to bargain about whether an

agency will bargain, and that the distinction is critical in

freeing us from our holding in Energy.

There is indeed a distinction, but it is not critical. The

same practical consequences flowing from the impasse pro-

cedures that made the distinction between a statutory re-

quirement and general duty to bargain of no consequence

in Energy obtain here. As in Energy, if we adopted the

Authority’s position, a “union could circumvent SSA by

the mere expedient of negotiating to impasse on a mid-

term bargaining provision” only to have the Impasses

Panel mandate the inclusion of such a provision through

its binding arbitration authority. Energy, 106 F.3d at

1164. Though an additional-step in the analysis is nec-

essary, there is no conceivable reason why a duty to bar-

gain is different for the purpose at hand from a duty to

bargain about whether to bargain. The overriding prin-

ciple in this circuit remains the same: an agency may

not be required to negotiate midterm. While agencies are

free to negotiate midterm if they so choose, requiring an

agency to negotiate midterm is “inconsistent with the

FSLMRA and, consequently, is not negotiable.” /d. at

1163. We therefore reject the Authority's attempt to

distinguish this case from Energy in the critical respect

sought. .

Recognizing the conceptual hurdle erected by Energy's

discussion of the Impasses Panel processes, the Authority

contends that this reasoning was dicta. The argument is

that the court in Energy went outside the facts before it,

misconstrued the basic role of the Impasses Panel, and

made a determination that does not accurately reflect the

experiences of the Panel or the Authority. It is not cer-

tain, according to the Authority, that an Impasses Panel

will always impose a midterm bargaining requirement

whenever a midterm proposal is made. In fact, on at least

one occasion the Impasses Panel has chosen not to impose

one, See Department of Health and Human Services, 94

Fed. Serv. Imp. Pan. 47 (Aug. 3, 1994). Moreover, if

impasse results and the Panel imposes a requirement to

negotiate a union’s proposal, “the agency head may rely

upon this [cJourt’s Energy v. FLRA decision to guide his

or her actions.” Respondent's brief at 19 (footnote

omitted ).

The Authority’s arguments misconstrue the regulatory

implications of an agency head’s failure to follow an

Impasses Panel mandate and disregard the explicit hold-

ing in Energy. Failure to abide by the binding arbitration

authority of the Panel is an unfair labor practice within

the meaning of § 7116(a)(6). See id. (“For the purpose

of this chapter, it shall be an unfair labor practice for an

agency—(6) to fail or refuse to cooperate in impasse pro-

cedures and impasse decisions as required by this chap-

ter.”). If an agency head does disapprove a requirement

to negotiate (or alternatively to negotiate about whether

10a

to negotiate) the agency's refusal to adhere to the Panel's

resolution would not be a viable alternative because such

an action could easily be considered an unfair labor

practice.

Attempts to characterize Energy's discussion of the Im-

passes Panel processes as dicta are also unpersuasive as a

technical matter. Energy’s description and understanding

of the Impasse Panel’s role were central to the court’s

disposition. Without this reasoning the court would have

been unable to dismiss (as “more apparent than real”) the

distinction between a statutory duty to negotiate and a

Panel-imposed obligation to negotiate. See Energy, 106

F.3d at 1163. Dependence upon this reasoning could not

have been more clearly expressed: “a clause requiring an

agency to engage in union-initiated midterm bargaining

is inconsistent with the FSLMRA and, consequently, is not

negotiable.” /d.

In its efforts to deal with our Energy decision, the au-

thority advances several policy arguments * and complains

of the quandary the conflicting holdings of the Fourth and

D.C. Circuits create. While we realize the difficulties

which the conflicting decisions present, we can only note

the obvious: that recourse for resolution must be sought

elsewhere.

In light of our decisions in Energy and SSA, we grant

the petition for review and deny enforcement of the Au-

thority’s decision.

SO ORDERED

2 The Authority argues that even if the Impasses Panel cannot

impose a requirement to bargain there is much benefit from an

agency negotiating over whether to negotiate. “Upon resumption of

bargaining, the agency may continue the proposal, seek modifica-

tion of the proposal, or bargain for union concessions in agreeing

to the proposal.” Respondent's brief at 18. We agree that there

may be times when an agency might choose te voluntarily enter into

midterm bargaining. We hold only that they may not be required

to do so.

lla

APPENDIX B

52 FLRA No. 46

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE INTERIOR

WASHINGTON, D.C.

and

U.S. GEOLOGICAL SURVEY

RESTON, VIRGINIA

ond (Respondents)

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

Loca. 1309

(Charging Party/ Union)

WA-CA-30451

DECISION AND ORDER

October 24, 1996

Before the Authority: Phyllis N. Segal, Chair; Tony

Armendariz and Donald S. Was-

serman, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority

in accordance with section 2429.1(a) of the Authority’s

Regulations, based on a stipulation of facts by the parties,

who have agreed that no material issue of fact exists. The

General Counsel, the Charging Party and the Respondents

filed briefs.

12a

The amended complaint alleges the following: (1) the

U.S. Geological Survey (Survey) violated section 7116

(a)(1) and (5) of the Federal Service Labor-Managen.ciu

Relations Statute (the Statute) by refusing to bargain over

a proposal authorizing midterm bargaining that is sub-

stantially identical to proposals previously found negotia-

ble by the Authority; and (2) the Department of the

Interior (Interior) violated section 7116(a)(1) of the

Statute by interfering with the bargaining relationship be-

tween Survey and the Charging Party. More particularly,

the amended complaint states that Survey's refusal to bar-

gain was based on advice received from Interior that the

proposal was nonnegotiable and that there was no obliga-

tion to bargain.’

For reasons that follow, we conclude that Survey vio-

lated the Statute, as alleged, and we order it to bargain

on request of the Charging Party. We also find that

Interior did not violate the Statute and we dismiss the

allegation of the amended complaint as to this party.

Il. Background and Stipulation

The Charging Party and Survey were engaged in term

negotiations for a successor agreement during which the

Charging Party offered the following proposal:

Article 7. Section 2.b. Union-initiated Bargaining.

The Union may request and the Employer will be

obliged to negotiate on any negotiable matters not

covered by the provisions of this agreement.

Stipulation, Exhibit 2 at 1.

Survey sought advice from Interior as to the negotiabil-

ity of the proposal. Interior advised that the proposal was

' The General Counsel withdrew allegations of the amended com-

plaint regarding a second proposal submitted by the Charging Party

and an allegation that Interior violated section 7116(a)(5) of the

Statute. General Counsel’s Brief at 1-2. These matters are not

before the Authority and we do not address them further.

13a

not within the duty to bargain based on the decision in

Social Security Administration v. FLRA, 956 F.2d 1280

(4th Cir. 1992) (SSA v. FLRA). After the Charging

Party again requested bargaining, Survey told the Charg-

ing Party that the proposal was not within the duty to

bargain and that it would not bargain. Survey took this

position based on the decision in SSA v. FLRA and

“information” from Interior. Stipulation, para. 13.

Survey and the Charging Party subsequently executed a

collective bargaining agreement. Referring to the Union's

bargaining proposal, the agreement included the following

language that was offered by Survey and agreed to by the

Charging Party:

The Parties have not agreed to this provision. The

Union has filed a ULP. Pending resolution of the

ULP, if the provision is declared negotiable, the

Parties agree to get together and bargain in good

faith to closure, including impasse, if necessary. If

the provision is declared non-negotiable, it will be

declared null and void.

Stipulation, para. 18. Interiogs thereafter reviewed the

collective bargaining agreement pursuant to section

7114(c) of the Statute and disapproved it.’

Ill. Positions of the Parties

A. General Counsel

The General Counsel contends that it is an unfair

labor practice to refuse to bargain over a proposal that is

substantially identical to one previously found negotiable

by the Authority. According to the General Counsel. the

Charging Party’s proposal is substantially identical to one

found negotiable in Merit Systems Protection Board Pro-

* The amended complaint does not allege a violation based on the

disapproval.

l4a

fessional Association and Merit Systems Protection Board,

Washington, D.C., 30 FLRA 852 (1988) (MSPB).

The General Counsel also claims that Interior unlaw-

fully interfered with the bargaining relationship of the

Charging Party and Survey. In support, the General

Counsel cites U.S. Department of Defense, National Guard

Bureau, Alexandria, Virginia, 47 FLRA 1213 (1993)

(National Guard Bureau).

To remedy the alleged unfair labor practices, the Gen-

eral Counsel requests that the Authority issue an order

that would require Survey “to bargain over the [Charging

Party’s] proposal and apply the results of that bargaining

retroactively to the date their successor agreement became

effective, if that occurred before the completion of bar-

gaining pursuant to the order.” General Counsel’s Brief

at 5.

B. Charging Party

The Charging Party cites various Authority decisions

and the court’s decision in National Treasury Employees

Union v. FLRA, 810 F.2d 295 (D.C. Cir. 1987) (NTEU

v. FLRA), in support of its argument that there is an

obligation to bargain over union-initiated proposals during

the term of a collective bargaining agreement. The Charg-

ing Party also points out that the Authority has refused to

follow SSA v. FLRA, adhering instead to NTEU vy.

FLRA. Finally, the Charging Party argues that the con-

duct of Interior in interfering with the negotiations be-

tween Survey and the Charging Party violated the Statute.

C. Respondents

The Respondents maintain that there is no obligation to

bargain over union-initiated midterm proposals. Accord-

ing to the Respondents, the Authority should adhere to the

position it took in /nternal Revenue Service, 17 FLRA

15a

731 (1985) (IRS 1),® as well as the decision of the

United States Court of Appeals for the Fourth Circuit,

in which Survey is located. The Respondents cite SSA v.

FLRA and Patent and Trademark Office v. FLRA, 991

F.2d 790 (4th Cir. 1993) (unpublished), in support of

their argument that the Charging Party’s proposal re-

quiring midterm bargaining on union-initiated proposals

is outside the duty to bargain.

The Respondents further assert that the decision in

Department of the Navy, Marine Corps Logistics Base,

Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992)

(Department of the Navy), demonstrates the D.C. Cir-

cuit’s endorsement of the “underlying policy rationale” of

SSA v. FLRA. Respondents’ Brief at 18. According to

the Respondents, “the D.C. Circuit interpreted the funda-

mental policy of the Statute as essentially limiting the

agency’s duty to bargain over union-initiated midterm

bargaining proposals as did the Fourth Circuit and the

Authority in 7/RS 1.” Id. at 22. The Respondents request

the Authority to reconsider and reverse its decision in /RS

II or find that it is not applicable in this case.

Finally, the Respondents take the position that the

stipulation contains no facts to support the allegation

that Interior directed Survey in any way or otherwise

interfered with the bargaining relationship of Survey and

the Charging Party. The Respondents contend that Sur-

vey “sought advice from” Interior and “independently

decided to follow this advice” when it informed the Charg-

ing Party that the proposal was nonnegotiable. /d. at 24.

’The Authority’s decision in JRS I was reversed in NTEU v.

FLRA, 810 F.2d 295. Subsequently, the Authority issued a decision

on remand, Internal Revenue Service, 29 FLRA 162 (1987) (JRS

11), in which it adopted the court’s decision holding that the Stat-

ute authorizes union-initiated midterm bargaining.

16a

IV. Analysis and Conclusions

A. The Basis of an Unfair Labor Practice In This Case

It is an unfair labor practice for an agency to refuse

to bargain over a proposal that is substantially identical

to one previously found negotiable by the Authority. E.g.,

U.S. Department of Health and Human Services, Public

Health Service and Centers for Disease Control, et al, 39

FLRA *206, 1311 (1991) (PHS). A respondent acts

at its pe ‘n such cases “without regard to whether [the]

respondent raises ‘new’ or ‘old’ arguments” and will be

found to have violated the Statute as long as the proposal

is within the duty to bargain. National Guard Bureau, 47

FLRA at 1218 (quoting U.S. Department of the Army,

Fort Stewart Schools, Fort Stewart, Georgia, 37 FLRA

409, 420 (1990) (Fort Stewart).

1. The Charging Party's Proposal Is Substantially

Identical to a Proposal That the Authority Pre-

viously Found Negotiable

As the General Counsel correctly states, the Authority

previously found negotiable a proposal authorizing union-

initiated midterm bargaining. In MSPB, the union pro-

posed that “the parties may engage in midterm bargain-

ing and bargain supplemental chapter agreements, on

matters not addressed in the National Agreement.” 30

FLRA at 859. The Authority determined that the pro-

posal was within the duty to bargain. In reaching that

result, the Authority rejected the agency’s sole contention

that there was no duty to bargain over proposals initiated

by the Union during the term of the negotiated agree-

ment. Citing /RS IJ, 29 FLRA 162, the Authority deter-

mined that the proposal at issue was negotiable because

it reiterated a right the Union had under the Statute.

Both this proposal and the proposal in MSPB authorize

union-initiated bargaining during the term of a collective

bargaining agreement. No substantive differences are ap-

parent between the proposals and the Respondents make

17a

no such claim. Therefore, we find that the Charging

Party's proposal is substantially identical to the proposal

in MSPB.

2. Proposals Authorizing Union-Initiated Midterm

Bargaining Are Within the Duty to Bargain

Under the Statute

In addition to the fact that the proposal is substantially

identical to a proposal previously found negotiable, there

is otherwise nothing in the record of this case that per-

suades us that the Charging Party’s proposal should be

found to be outside the duty to bargain. In particular,

we reject the Respondents’ assertions that the Authority

follow its decision in /RS I or find that the decision in

IRS II is not applicable here. The Authority adheres to

its position with regard to bargaining over uni »n- nitiated

proposals during the term of an agre~mer ee e.g.,

Department of Health and Human Serve . social Secu-

rity Administration, 47 FLRA 1206 (1993); U.S. Army

Corps of Engineers, Kansas City District, Kansas City,

Missouri, 31 FLRA 1231 (1988). The Respondents’

reliance on SSA v. FLRA and their assertions regarding

Department of the Navy do not warrant a departure from

that position.

In SSA v. FLRA, the U.S. Court of Appeals for the

Fourth Circuit held, as relevant here, that the Statute does

not require bargain*"g on union-initiated matters during

the term of a collective bargaining agreement. More

recently, in U.S. Department of Energy, Washington,

D.C., 51 FLRA 124 (1995), petition for review filed,

No. 95-2949 (4th Cir. Nov. 6, 1995), the Authority

addressed the effect of the court's decision on the nego-

tiability of a proposal seeking to authorize union-initiated

midterm bargaining. The Authority determined that a

provision authorizing union-initiated midterm bargaining

during the term of an agreement was within the duty to

bargain. In reaching that result, the Authority stated that

the Fourth Circuit in SSA v. FLRA “did not address the

18a

negotiability of a provision for union-initiated midterm

bargaining; the court addressed only whether, apart from

any contractual obligation, an agency is required under

the Statute to engage in such bargaining.” 51 FLRA at

127 (footnote omitted). Noting that it has declined to

follow SSA v. FLRA, the Authority stated that even if it

were to agree with that decision, the outcome would re-

main the same because the Authority “has previously up-

held the negotiability of proposals despite the absence of

a statutory right concerning the matter in question.” 51

FLRA at 127 n.4. Similarly, we find nothing in SSA v.

FLRA that compels the conclusion that the Charging

Party's proposal in this case is outside the duty to bar-

gain. See also American Federation of Government Em-

ployees, Local 1995 and U.S. Department of Energy,

Morgantown Energy Technology Center, Morgantown

West Virginia, 47 FLRA 470 (1993) (Authority found

negotiable a proposal containing a reopener clause and,

in so doing, rejected the claimed applicability of SSA v.

FLRA).

We also find nothing in Department of the Navy that

compels a finding that there is no obligation to bargain

over the proposal. In that case, the U.S. Court of Ap-

peals for the District of Columbia Circuit addressed

whether there was an obligation to bargain over matters

that are covered by or contained in existing collective

bargaining agreements, not whether there is a duty to

bargain over union-initiated midterm bargaining. That is,

the court addressed the parameters of the duty to engage

in midterm bargaining, not whether there is such a duty

to bargain in the first place. While the court discussed

the need to provide parties with “stability and repose”

with respect to matters reduced to writing, that finding

was tied to the policies regarding the duty to bargain over

matters that are contained in or covered by collective

bargaining agreements. 962 F.2d at 59. The Authority

has since modified that policy. See U.S. Department of

Health and Human Services, Social Security Administra-

tion, Baltimore, Maryland, 47 FLRA 1004 (1993).

within the duty to bargain. In reaching this result, we

make no judgment as to the merits of the proposal.

B. Survey Violated the Statute; Interior Did Not Violate

the Statute

The Authority previously has held that when higher-

level management within a chain of command directs

management at a subordinate level in that same chain of

command to act in a manner that is inconsistent with the

subordinate level’s bargaining obligations under the Stat-

ute, the higher level violates section 7116(a)(1) and (5)

of the Statute. Air Force Logistics Command, Wright-

Patterson Air Force Base, Ohio, 46 FLRA 1184, 1186

(1993) (AFLC). Conversely, if the party at the level

of exclusive recognition is prevented from bargaining

based on direction from higher level management, no

violation is found against the party that is merely com-

plying with higher-level direction and whose actions are

ministerial in nature. PHS, 39 FLRA at 1315.

In this case, the record clearly establishes that Survey

refused to bargain over a proposal that is substantially

identical to a proposal that the Authority had previously

determined was within the duty to bargain. See §IV.A,

supra. Although the record discloses that Survey sought

advice from Interior prior to informing the Charging

Party of its position, there is no evidence that Interior

directed Survey to refuse to bargain. Further, there is

no evidence that Survey was prevented from bargaining

by the actions or conduct of Interior. Indeed, the Re-

spondents maintain, in their post-stipulation brief, that

Survey acted independently in following the advice offered

by Interior. Accordingly, we conclude that Survey vio-

lated section 7116(a)(1) and (5) of the Statute by re-

fusing to bargain over the Charging Party's proposal.

20a -

We further find that Interior did not interfere with the

bargaining relationship between Survey and the Charging

Party. In the circumstances of this case, the fact that

Interior provided advice to Survey does not establish that

Interior directed Survey to act in a particular manner or

to refrain from taking any action in fulfillment of its

bargaining obligation. See Kansas Army National Guard

and National Guard Bureau, 10 FLRA 303, 306 (1982)

(finding no violation against a higher-level entity in the

chain of command for “advising the [lower level entity]

to take the course of aciion which it did as opposed to

directing the latter to take such action”) (emphasis in

original). See also PHS, 39 FLRA at 1314 (more than

mere reference to the existence of policy by an agency is

necessary to establish that an agency has unlawfully inter-

fered with the collective bargaining relationship between

its subordinate activities and the exclusive representative ).

We also find that this case is distinguishable from situa-

tions in which higher-level management prohibited a sub-

ordinate level from bargaining, see AFLC, 46 FLRA at

1186, or in some other manner prevented a subordinate

from fulfilling its statutory obligations. See Headquarters,

U.S. Air Force, Washington, D.C. and 375th Combat

Support Group, Scott Air Force Base, Illinois, 44 FLRA

117, 125-26 (1992) (Member Armendariz dissentinz),

petition for review denied sub nom. Heddquarters, U.S.

Air Force, Washington, D.C. v. FLRA, 10 F.3d 13 (D.C.

Cir. 1993) (without opinion).

Finally, the record does not support the General Coun-

sel’s assertion that Interior’s conduct is essentially identi-

cal to conduct that was found to be unlawful in National

Guard Bureau, 47 FLRA 1213. In that case, there is no

evidence that management at the level of exclusive recog-

nition acted independently in declaring nonnegotiable a

union proposal. In contrast, the Respondents acknowledge

in this case that Survey “independently decided to follow”

Interior’s advice. Respondents’ Brief at 24.

21a

In sum, we conclude that Survey violated section

7116(a)(1) and (5) of the Statute. Interior did not

violate the Statute, as alleged.

C. A Bargaining Order Is an Appropriate Remedy

In prior Authority decisions involving an unlawful re-

fusal to bargain over a proposal substantially identical to

one previously found negotiable, the Authority has or-

dered the parties, on request of the union involved, to

bargain over the proposal and to give such bargaining

retroactive effect. E.g., National Guard Bureau, 47 FLRA

at 1220; Fort Stewart, 37 FLRA at 422. In these cases,

no reason was argued or apparent for not providing such

a remedy. More particularly, there was no evidence that

the parties would be unable to implement retroactively

any agreement reached.

In this case, however, we find that such a remedy is

not appropriate. The General Counsel has not identified,

and it is not otherwise clear to us, how the requested

remedy is capable of implementation. The proposal at

issue authorizes union-initiated midterm bargaining. By

its very nature, its application has a prospective effect in

that it addresses the bargaining relationship that the par-

ties will have in the future. Given the nature of this

proposal, we find that an order to bargain over the pro-

posal, on request of the Charging Party, is appropriate

and will effectuate the purposes and policies of the Stat-

ute. E.g., Department of the Air Force, U.S. Air Force

Academy, 6 FLRA 548 (1981), aff'd, 717 F.2d 1314

(10th Cir. 1983).

V. Order

Pursuant to section 2423.29 of the Authority’s Regula-

tions and section 7118 of the Federal Service-Labor Man-

agement Relations Statute, the U.S. Geological Survey,

Reston, Virginia, shall:

22a

1. Cease and desist from:

(a) Failing and refusing to negotiate with the Na-

tional Federation of Federal Employees, Local 1309, the

employees’ exclusive bargaining representative, over 4

proposal authorizing union-initiated midterm bargaining

that is substantially identical to a proposal previously

found negotiable by the Authority.

(b) In any like or related manner, interfering with,

restraining, or coercing bargaining unit employees in the

exercise of their rights assured by the Federal Service

Labor-Management Relations Statute.

2. Take the following affirmative action in order to

effectuate the purposes and policies of the Statute:

(a) Upon request, bargain in good faith with the

National Federation of Federal Employees, Local 1309,

over the proposal authorizing union-initiated midterm

bargaining.

(b) Post at its facilities copies of the attached

notice on forms to be furnished by the Federal Labor

Relations Authority. Upon receipt of such forms, they

shall be signed by the head of the U.S. Geological Survey,

and shall be posted and maintained for 60 consecutive

days thereafter, in conspicuous places, including all bulle-

tin boards and other places where notices to employees

are customarily posted. Reasonable steps shall be taken

to ensure that such Notices are not altered, defaced, or

covered by any other material.

Regulations, notify the Regional Director, Washington

Regional Office, Federal Labor Relations Authority, in

writing, within 30 days from the date of this Order, as

to what steps have been taken to comply.

All allegations in the amended complaint pertaining to

the U.S. Department of the Interior, Washington, D.C. are

23a

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that

the U.S. Geological Survey, Reston, Virginia, violated the

Federal Service Labor-Management Relations Statute and

has ordered us to post and abide by this Notice:

We hereby notify bargaining unit employees that:

WE WILL NOT refuse to negotiate with the National

Federation of Federal Employees, Local 1309, the em-

Ployees’ exclusive bargaining representative, over a pro-

posal authorizing union-initiated midterm bargaining that

is substantially identical to a proposal previously found

negotiable by the Authority.

WE WILL NOT, in any like or related manner, interfere

with, restrain, or coerce bargaining unit employees in the

exercise of their rights assured by the Federal Service

Labor-Management Relations Statute.

WE WILL, upon request, bargain in good faith with the

National Federation of Federal Employees, Local 1309,

over the proposal authorizing union-initiated midterm

bargaining.

( Activity )

Dated: By:

(Signature ) (Title)

This Notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material.

If employees have any questions concerning this Notice

or compliance with its provisions, they may communicate

directly with the Regional Director, Washington Regional

Office, whose address is: 1255 22nd Street, N.W., 4th

Floor, Washington, D.C. 20037, and whose telephone

number is: (202) 653-8500.

24a

APPENDIX C

STATUTORY PROVISIONS INVOLVED

5 U.S.C.

§ 7101. Findings and purpose

(a) The Congress finds that—

(1) experience in both private and public employ-

ment indicates that the statutory protection of the

right of employees to organize, bargain collectively,

and participate through labor organizations of their

own choosing in decisions which affect them—

(A) safeguards the public interest, -

(B) contributes to the effective conduct of

public business, and

settlements of disputes between employees and

their employers involving conditions of employ-

ment; and

(2) the public interest demands the highest stand-

ards of employee performance and the continued

development and implementation of modern and pro-

gressive work practices to facilitate and improve em-

ployee performance and the efficient accomplishment

of the operations of the Government.

Therefore, labor organizations and collective bargaining

in the civil service are in the public interest.

(b) It is the purpose of this chapter to prescribe cer-

tain rights and obligations of the employees of the Federal

Government and to establish procedures which are de-

signed to meet the special requirements and needs of the

Government. The provisions of this chapter should be

interpreted in a manner consistent with the requirenent

of an effective and efficient Government.

25a

§ 7103. Definitions; application

(a) For the purpose of this chapter—

* * * *

(8) “collective bargaining agreement” means an

agreement entered into as a result of collective bar-

gaining pursuant to the provisions of this chapter;

* * * *

(12) “collective bargaining” means the perform-

ance of the mutual obligation of the representative of

an agency and the exclusive representative of em-

ployees in an appropriate unit in the agency to meet

at reasonable times and to consult and bargain in a

good-faith effort to reach agreement with respect to

the conditions of employment affecting such employ-

ees and to execute, if requested by either party, a

written document incorporating any collective bar-

gaining agreement reached, but the obligation re-

ferred to in this paragraph does not compel either

party to agree to a proposal or to make a concession:

* * * .

(14) “conditions of employment” means person-

nel policies, practices, and matters, whether estab-

lished by rule, regulation, or otherwise, affecting

working conditions, except that such term does not

include policies, practices, and matters—

(A) relating to political activities prohibited

under subchapter III of chapter 73 of this title:

(B) relating to the classification of any posi-

tion; or

provided for by Federal statute;

§ 7106. Management rights

(a) Subject to subsection (b) of this section, nothing

-in this chapter shall affect the authority of any manage-

ment official of any agency—

26a

(1) to determine the mission, budget, organiza-

tion, 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 discipli-

nary action against such employees;

(B) to assign work, to make determinations

with respect to contracting out, and to deter-

mine the personnel by which agency operations

shall be conducted;

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 neces-

sary 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 ad-

versely affected by the exercise of any authority

under this section by such management officials.

27a

§ 7114. Representation rights and duties

(a)(1) A labor organization which has been accorded

exclusive recognition is the exclusive representative of the

employees in the unit it represents and is entitled to act

for, and negotiate collective bargaining agreements cover-

ing, all employees in the unit. An exclusive representative

is responsible for representing the interests of all employ-

ees in the unit it represents without discrimination and

without regard to labor organization membership.

(2) An exclusive representative of an appropria‘te unit

in an agency shall be given the opportunity to be repre-

sented at—

(A) any formal discussion between one or more

representatives of the agency and one or more em-

ployees in the unit or their representatives concerning

any grievance or any personnel policy or practices

or other general condition of employment; or

(B) any examination of an employee in the unit

by a representative of the agency in connection with

an investigation if—

(i) the employee reasonably believes that the

examination may result in disciplinary action

against the employee; and

(ii) the employee requests representation.

(3) Each agency shall annually inform its employees

of their rights under paragraph (2)(B) of this subsection.

(4) Any agency and any exclusive representative in

any appropriate unit in the agency, through appropriate

representatives, shall meet and negotiate in good faith for

the purposes of arriving at a collective bargaining agree-

ment. In addition, the agency and the exclusive repre-

sentative may determine appropriate techniques, consist-

ent with the provisions of section 7119 of this title, to

assist in any negotiation.

28a

(5) The rights of an exclusive representative under the

provisions of this subsection shall not be construed to

preclude an employee from— -

(A) being represented by an attorney or other

representative, other than the exclusive representa-

tive, of the employee’s own choosing in any grievance

or appeal action; or

(B) exercising grievance or appellate rights estab-

lished by law, rule, or regulation;

except in the case of grievance or appeal procedures

negotiated under this chapter.

(b) The duty of an agency and an exclusive repre-

sentative to negotiate in good faith under subsection (a)

of this section shall include the obligation—

(1) to approach the negotiations with a sincere

resolve to reach a collective bargaining agreement;

(2) to be represented at the negotiations by duly

authorized representatives prepared to discuss and

negotiate on any condition of employment;

(3) to meet at reasonable times and convenient

places as frequently as may be necessary, and to

avoid unnecessary delays;

(4) in the case of an agency, to furnish to the

exclusive representative involved, or its authorized

representative, upon request and, to the extent not

prohibited by law, data—

(A) which is normally maintained by the

agency in the regular course of business:

(B) which is reasonably available and nec-

essary for full and proper discussion, under-

standing, and negotiation of subjects within the

scope of collective bargaining; and

29a

vice, counsel, or training provided for manage-

ment officials or supervisors, relating to collec-

tive bargaining; and

(5) if agreement is reached, to execute on the

request of any party to the negotiation a written

document embodying the agreed terms, and to take

such steps as are necessary to implement such agree-

ment.

(c)(1) An agreement between any agency and an

exclusive representative shall be subject to approval by

the head of the agency.

(2) The head of the agency shall approve the agree-

ment within 30 days from the date the agreement is

executed if the agreement is in accordance with the pro-

visions of this chapter and any other applicable law, rule,

or regulation (unless the agency has granted an exception

to the provision).

(3) If the head of the agency does not approve or

disapprove the agreement within the 30-day period, the

agreement shall take effect and shall be binding on the

agency and the exclusive representative subject to the pro-

visions of this chapter and any other applicable law, rule,

or regulation.

(4) A local agreement subject to a national or other

controlling agreement at a higher level shall be approved

under the procedures of the controlling agreement or, if

none, under regulations prescribed by the agency.

§ 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an

unfair labor practice for an agency—

* * * *

(5) to refuse to consult or negotiate in good

faith with a labor organization as required by this

chapter;

30a

§ 7117. Duty to bargain in good faith; compelling need;

duty to consult

(a)(1) Subject to paragraph (2) of this subsection,

the duty to bargain in good faith shall, to the extent not

inconsistent with any Federal law or any Government-

wide rule or regulation, extend to matters which are the

subject of any rule or regulation only if the rule or regu-

lation is not a Government-wide rule or regulation.

(2) The duty to bargain in good faith shall, to the

extent not inconsistent with Federal law or any Govern-

ment-wide rule or regulation, extend to matters which are

the subject of any agency rule or regulation referred to in

paragraph (3) of this subsection only if the Authority has

determined under subsection (b) of this section that no

compelling need (as determined under regulations pre-

scribed by the Authority) exists for the rule or regulation.

(3) Paragraph (2) of the subsection applies to any

rule or regulation issued by any agency or issued by any

primary national subdivision of such agency, unless an

exclusive representative represents an appropriate unit

including not less than a majority of the employees in the

issuing agency or primary national subdivision, as the case

may be, to whom the rule or regulation is applicable.

§ 7118. Prevention of unfair labor practices

(a)(1) If any agency or labor organization is charged

by any person with having engaged in or engaging in an

unfair labor practice, the General Counsel shall investi-

gate the charge and may issue and cause to be served

upon the agency or labor organization a complaint. In

any case in which the General Counsel does not issue a

complaint because the charge fails to state an unfair labor

practice, the General Counsel shall provide the person

making the charge a written statement of the reasons for

not issuing a complaint.

(2) Any complaint under paragraph (1) of this sub-

section shall contain a notice—

3la

(A) of the charge;

(B) that a hearing will be held before the Author-

ity (or any member thereof or before an individual

employed by the authority and designated for such

purpose); and

(3) The labor organization or agency involved shall

have the right to file an answer to the original and any

amended complaint and to-appear in person or otherwise

and give testimony at the time and place fixed in the

complaint for the hearing.

(4)(A) Except as provided in subparagraph (B) of

this paragraph, no complaint shall be issued based on any

alleged unfair labor practice which occurred more than

6 months before the filing of the charge with the Au-

thority.

(B) If the General Counsel determines that the person

filing any charge was prevented from filing the charge

during the 6-month period referred to in subparagraph

(A) of this paragraph by reason of —

(i) any failure of the agency or labor organiza-

tion against which the charge is made to perform a

duty owed to the person, or

(ii) any concealment which prevented discovery

of the alleged unfair labor practice during the 6-

month period,

the General Counsel may issue a complaint based on the

charge if the charge was filed during the 6-month period

beginning on the day of the discovery by the person of

(5) The General Counsel may prescribe regulations

providing for informal methods by which the alleged un-

fair labor practice may be resolved prior to the issuance

of a complaint.

32a

(6) The Authority (or any member thereof or any in-

dividual employed by the Authority and designated for

such purpose) shall conduct a hearing on the complaint

not earlier than 5 days after the date on which the com-

plaint is served. In the discretion of the individual or

individuals conducting the hearing, any person involved

may be allowed to intervene in the hearing and to present

testimony. Any such hearing shall, to the extent prac-

ticable, be conducted in accordance with the previsions

of subchapter II of chapter 5 of this title, except that the

parties shall not be bound by rules of evidence whether

statutory, common law, or adopted by a court. A tran-

script shall be kept of the hearing. After such a hearing

the Authority, in its discretion, may upon notice receive

further evidence or hear argument.

(7) If the Authority (or any member thereof or any

individual employed by the Authority and designated for

such purpose) determines after any hearing on a com-

plaint under paragraph (5) of this subsection that the

preponderance of the evidence received demonstrates that

the agency or labor organization named in the complaint

has engaged in or is engaging in an unfair labor practice.

then the individual or individuals conducting the hearing

shall state in writing their findings of fact and shall issue

and cause to be served on the agency or labor organiza-

tion an order— :

(A) to cease and desist from any such unfair

labor practice in which the agency or labor organiza-

tion is engaged;

(B) requiring the parties to renegotiate a collec-

tive bargaining agreement in accordance with the

order of the Authority and requiring that the agree-

ment, as amended, be given retroactive effect;

backpay in accordance with section 556 of this title:

33a

(D) including any combination of the actions

scribed in subparagraphs (A) a (C) of

paragraph or such other action as will carry out

purpose of this chapter.

If any such order requires reinstatement of an employee

with backpay, backpay may be required of the agency

(as provided in section 5596 of this title) or

ization, as the case may be, which is found to have

engaged in the unfair labor practice involved.

(8) If the individual or individuals conducting the

shall issue an order Semiaing the sueenaet

* * x *

(b) In connection with any matter before the Au-

thority in any proceeding under this section, the Author-

ity may request, in accordance with the provisions of

section 7105(i) of this titie, from the Director of the

Sikes of Vemma Management an advisory opinion con-

cerning the proper interpretation of rules, regulations, or

other policy directives issued by the Office of Personnel

Management.

§ 7119. Negotiation impasses; Federal Service Impasses

Panel

(a) The Federal Mediation and Conciliation Service

shall provide services and assistance to agencies and ex-

clusive representatives in the resolution of negotiation

impasses. The Service shall determine under what cir-

cumstances and in what manner it shall provide services

and assistance.

(b) If voluntary arrangements, including the services

of the Federal Mediation and Conciliation Service or any

other third-party mediation, fail to resolve a negotiation

impasse—

34a

(1) either party may request the Federal Service

Impasses Panel to consider the matter, or

(2) the parties may agree to adopt a procedure

for binding arbitration of the negotiation impasse,

but only if the procedure is approved by the Panel.

(c)(1) The Federal Service Impasses Panel is an en-

tity within the Authority, the function of which is to pro-

vide assistance in resolving negotiation impasses between

agencies and exclusive representatives.

(2) The Panel shall be composed of a Chairman and

at least six other members, who shall be appointed by

the President, solely on the basis of fitness to perform the

duties and functions involved, from among individuals

who are familiar with Government operations and knowl-

edgeable in labor-management relations.

(3) Of the original members of the Panel, 2 members

shall be appointed for a term of 1 year, 2 members shall

be appointed for a term of 3 years, and the Chairman

and the remaining members shall be appointed for a term

of 5 years. Thereafter each member shall be appointed

for a term of 5 years, except that an individual chosen to

fill a vacancy shall be appointed for the unexpired term

of the member replaced. Any member of the Panel may

be removed by the President.

(4) The Panel may appoint an Executive Director and

any other individuals it may from time to time find neces-

sary for the proper performance of its duties. Each mem-

ber of the Panel who is not an employee (as defined in

section 2105 of this title) is entitled to pay at a rate equal

to the daily equivalent of the maximum annual rate of

basic pay then currently paid under the General Schedule

for each day he is engaged in the performance of official

business of the Panel, including travel time, and is entitled

to travel expenses as provided under section 5703 of this

title.

35a

(5)(A) The Panel or its designee shall promptly in-

vestigate an impasse presented to it under subsection (b)

of this section. This Panel shall consider the impasse

and ° shall either—

(i) recommend to the parties procedures for the

resolution in the impasse; or

(ii) assist the parties in resolving the impasse

through whatever methods and procedures, including

factfinding and recommendations, it may consider

appropriate to accomplish the purpose of this section.

(B) If the parties do not arrive at a settlement after

assistance by the Panel under subparagraph (A) of this

paragraph, the Panel may—

(i) hold hearings;

(ii) administer oaths, take the testimony or depo-

sition of any person under oath, and issue subpenas

as provided in section 7132 of this title; and

(iii) take whatever action is necessary and not

inconsistent with this chapter to resolve the impasse.

section shall be promptly served upon the parties, and the

action shall be binding on such parties during the term

of the agreement, unless the parties agree otherwise.

§ 7123. Judicial review; enforcement

(a) Any person aggrieved by any final order of the

Authority other than an order under—

(1) section 7122 of this title (involving an award

by an arbitrator), unless the order involves an unfair

labor practice under section 7118 of this title, or

(2) section 7112 of this title (involving an ap-

propriate unit determination ),

may, during the 60-day period beginning on the date on

which the order was issued, institute an action for judicial

36a

review of the Authority’s order in the United States court

of appeals in the circuit in which the person resides or

transacts business or in the United States Court of Ap-

peals for the District of Columbia.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.