Amicus Curiae Brief — Federal Employees v. Department of Interior

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Nos. 97-1184 & 97-1243

In the Supreme Court of the Wuitesebas

OCTOBER TERM, 1997

a A me Ne tt ee tn. lll

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NATIONAL FEDERATION OF FEDERAL EMPLOYEES,

LocaL 1309,

. Petitioner,

UNITED STATES DEPARTMENT OF THE INTERIOR, ef al.,

Respondents.

FEDERAL LABOR RELATIONS AUTHORITY,

* Petitioner,

UNITED STATES DEPARTMENT OF THE INTERIOR, ef al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICI CURIAE OF

THE AMERICAN FERERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AND THE AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO

IN SUPPORT OF THE PETITIONERS

MARK D. RoTH JONATHAN P. HIATT

80 “F”’ Steet, N.W. JAMES B. COPPESS

Washington, D.C. 20001 815 16th Street, N.W.

KEVIN M. GRILE Washington, D.C. 20006

25 West Chicago Avenue MARSHA S. BERZON

Suite 410 177 Post Street, Suite 300

Chicago, IL 60610 San Francisco, CA 94108

LAURENCE GOLD *

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 833-9340

* Counsel of Record

WiILeon - Erzs Printine Co., Inc. - 769-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

cit teett th hhh ee ee eee ee eee eee eee ee eee ee

Page

ii

30

ii

TABLE OF AUTHORITIES

CASES Page

American Federation of Government Employees

v. FLRA, 750 F.2d 148 (D.C. Cir. 1984) -........... 21

American Hospital Association v. NLRB, 499 U.S.

BOB CIDDL) .....neocreceseseceecsn--ccecosenvcesnsrensseneresnosnssenens 20

Brogan v. United States, 118 S. Ct. 805 (1998) ...... 25

Bureau of Alcohol, Tobacco & Firearms v. FLRA,

ABE U.S. BO (19GB) ...ccccncececceeeecseccecccnosecsccarennsoemes 9,13

Chevron, U.S.A., Ine. v. Natural Resources De-

fense Council, 467 U.S. 837 (1984) ...............------ 15

Director, Office of Workers Compensation of New-

port News, 514 U.S. 122 (1995) ..............-.....------- 25

Fort Stewart Schools v. FLRA, 495 U.S. 641

(| ) 10, 16

IRS v. FLRA, 494 U.S. 922 (1990) ................--..-..- 30

Internal Revenue Service, 17 F.L.R.A. 731 (1985) .. 24

Internal Revenue Service, 29 F.L.R.A. 162 (1987)... 3

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

(D.C. Clr. 1068) ...-cceceocercceneemescnsnscuntoseneressenssssonvnss 13, 14

Luke Air Force Base, Arizona, 49 F.L.R.A. 137

(1 DDE) cacecersecesoccesecescocestoteieeteneneieinnneaiannaa &

Marine Corps Logistics Base, Barstow, California,

RAR TS, Fi | eee ~

NLRB v. Jacobs Mfg. Co., 94 N.L.R.B. 1214

(1951), enf’d, 196 F.2d 680 (2d Cir. 1952) ......5, 15, 26

National Treasury Employees Union v. FLRA,

691 F.2d 658 (D.C. Cir. 1982) ................--.00---+++- 21

National Treasury Employees Union v. FLRA,

810 F.2d 295 (D.C. Cir. 1987) ........................-. 4, 25, 27

Negonsett v. Samuels, 507 U.S. 99 (1998) ............ 16

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

1280 (Ath Cle. 1908) ......00---0cce0scecccsecssesscceessmvesenses passim

United States v. Alvarez-Sanchez, 511 U.S. 350

(| | | EEE 16

United States v. Ron Fair Enterprises, 489 U.S.

| i) ) a 19

U.S. Department of the Air Force, Air Force Ma-

teriel Command, Wright-Patterson AFB, Ohio,

(ARTS £2). ee x

iti

TABLE OF AUTHORITIES—Continued

Page

U.S. Department of Energy v. FLRA, 106 F.3d

ff, i LE See 4, 15

U.S. Department of Health & Human Services,

SSA, Baltimore, Md., 47 F.L.R.A. 1004 (1998). 5, 27

U.S. Department of Justice, Immigration and Nat-

uralization Service, 51 F.L.R.A. 1274 (1996)... 28

U.S. Department of Labor, Washington, D.C., 44

a x

U.S. Department of Transportation, Federal Avia-

tion Administration, 5 A/SLMR 344 (1975)... 23

West Virginia University Hospitals, Inc. v. Casey,

499 U.S. 88 (1991) ...................... inidatigntieucommmmennans 19

STATUTES

each ciiriet nctteeieiceciiamedaninntetianieeascennes 26

EA ee 9, 26

ATS ANSI abet 9

5 U.S.C. § 7101 (a) (2) _...... iestdaehitantinatelinaysdavineepemstiion 9

a 10, 26

SS 10, 16

a 16

SR 11,17

5 U.S.C. § 7103 (a) (12) 2... picianinnieceniald 5, 11, 12

een 11

la isersccessiccsegnensunseunennesentenusenecss 14

Ee 18

Ee ee 10

a stiinniciamamaneneen 17, 20

5 U.S.C. § 7114 (a) ........ hapopinhanteaereuintassensenatimensmusnten 20

I 10, 11, 16

6 U.S.C. § 7114 (a) (4) nec cceeeceeceeeee 12, 13, 16, 17, 18

ce 12, 17, 20

5 U.S.C. § 7114(b) (1) -...................... anpadaaiieenaentnne 12, 16, 18

5 U.S.C. § 7114(b) (2) .............................. ipheisioeeledodend 12

cD = 12

EE 12

ht 12

EE 17, 18

iv

TABLE OF AUTHORITIES—Continued

Page

‘DOES a 12

5 U.S.C. $ 7116 (a) (GB) .....-......-20.0---00-eereeenseeoennesensennees 12

———————— 12

6 U.B.C. & TLIG(B) (6) ----.--.------ceoea- -cneceenovesceessonenoences 12

5 U.S.C. § 7116 (b) (7) (A) -..----------<----------eneeennennnneee 10

fl’. a Se Sle 7

A t.8) | nits sitalainiiiicsiieaal 14, 29

D0.) 7 8, 14, 29

5 U.S.C. § 7118 .......... ee Se 29

MISCELLANEOUS

Army and Air Force Exchange Services, Capitol

Exchange Region Headquarters, 2 Rulings in

Request for Review 56 (Ass’t Secretary of

8 EEE 24

Richard Freeman and James Medoff, What Do

Unions Do? Ch. 6 (1984) .................-.---0-ceeeeeeeeee+ 10

Legislative History of the Federal Service Labor-

Management Relations Statute, Title VII of the

Civil Service Reform Act of 1978 ...................~-.- 23, 24

LEGISLATIVE HISTORY

124 Cong. Rec. (daily ed.) (Sept. 13, 1978) -........... 21, 22

S. 2640, 95th Cong., 2d Sess. (1978) ...................-....... 20

S. Rep. No. 969, 95th Cong., 2d Sess. (1978) ......... 19, 20, 21

BRIEF AMICI CURIAE OF

THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AND THE AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO

IN SUPPORT OF THE PETITIONER

The American Federation of Labor and Congress of

Industrial Organizations (AFL-CIO), a federation of 75

national and international unions with a total membership

of approximately 13,000,000 working men and womer,

and the American Federation of Government Employees,

a labor organization affiliated with the AFL-CIO which

represents approximately 600,000 employees of the United

States in certified bargaining units, file this brief amici

curiae with the consent of the parties as provided for in

the Rules of this Court.

SUMMARY OF ARGUMENT

Under the Fourth Circuit’s view of the Federal Service

Labor-Management Relations Statute (FSLMRS or Fed-

eral Labor Statute), federal agencies have no duty to

negotiate with a certified union after a collective bar-

gaining agreement has been entered into, even with regard

to otherwise negotiable subjects not covered by the agree-

ment and even as to matters that the union could not

have reasonably brought into the original negotiations.

Federal employers may, however, under the court of ap-

peals’ statutory interpretation, propose changes in condi-

tions of employment mid-term in a collective bargaining

t and the union, unless it negotiates concerning

those changes, foregoes any later opportunity to do so.

This one-sided, inflexible collective bargaining regime is

not the one Congress embodied in the Federal Labor

Statute.

1 No counsel for a party authored this brief amici curiae in whole

or in part, and no person or entity, other than the amici curiae,

made a monetary contribution to the preparation or submission of

this brief.

2

That Statute, rather, was enacted for the primary pur-

pose of giving employees a “voice” in shaping their day-

to-day working environment, and did not silence that voice

once any agreement covering a particular time period is

consumated. Rather, the Statute provides generally for

mandatory negotiations concerning “conditions of employ-

ment.” with detailed exceptions that do not state any limit

pertinent here. Moreover, the bargaining obligation

spelled out by the FSLMRS is, in terms, mutual and sym-

metrical, not evidencing the fundamental disparity between

employer and union obligations posited by the Fourth

Circuit. And, the very detail with which the exceptions to

the statutory bargaining obligation are enunciated, as well

as the elaborate procedures for determining negotiability

and for applying those explicit exceptions, are inconsistent

with the broad limitation on union-initiated mid-term bar-

gaining that the Fourth Circuit would read into the Fed-

eral Labor Statute.

The reasons the Fourth Circuit gave for so expanding

the statutory limitations on the bargaining obligation do

not stand up. In context, the phrase “a collective bar-

gaining agreement” in two of the many statutory provi-

sions describing the duty to bargain in good faith only

refers to the goal of any particular set of negotiations,

and cannot sensibly be read as precluding overlapping

collective bargaining agreements; indeed, the Fourth Cir-

cuit, and the respondents, concede that there can be more

than one agreement in effect at any given time (or that

there can be supplements or amendments to extant agree-

ments), as long as the second set of negotiations are insti-

gated by the employer rather than the union.

The Federal Labor Statute’s legislative history, more-

over, indicates overall that Congress intended a flexible,

broad scope of bargaining, while the snippet of that history

relied upon by the Fourth Circuit pertains to a provision

that reads differently from the version ultimately enacted

and, in any event, cannot sensibly be read to preclude mid-

term union-initiated bargaining under the Federal Labor

Statute as ultimately enacted. And, contrary to the Fourth

3

Circuit’s conclusion, interpretations of the pre-FSLMRS

Executive Order governing federal sector labor relations

are of little relevance to duty to bargain issues under the

1978 Statute, and, in any event, are not inconsistent with

the proposition that agencies have an obligation to bargain

over union-initiated mid-term bargaining proposals.

Policy considerations, most heavily relied upon by the

Fourth Circuit, are of little pertinence where the legisla-

tive language and structure point clearly in a single direc-

tion, as they do here. And, the Fourth Circuit's policy

concerns are ephermeral, particularly when the adverse

policy consequences of barring union-initiated mid-term

proposals while permitting federal employers to make

mid-term proposals are considered.

ARGUMENT

The precise issue in this case is whether the following

union collective bargaining proposal is “negotiable” under

the Federal Service Labor-Management Relations Statute

(FSLMRS or Federal Labor Statute):

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. [FLRA Pet. App. 14a.]

The Federal Labor Relations Authority (FLRA or

Authority )—ihe agency Congress charged with determin-

ing the scope of federal sector collective bargaining, 5

U.S.C, § 7117(c)—concluded that such “proposals au-

thorizing union-initiated mid-term bargaining are within

the duty to bargain under the Statute.” FLRA Pet. App.

19a (capitalization and italics omitted ).

In so concluding, the FLRA rested, first, on its construc-

tion of the Federal Labor Statute stated in Jnternal Reve-

nue Service (IRS 11), 29 F.L.R.A. 162 (1987)—that the

Statute requires federal agencies to bargain collectively on

a proper union proposal covering some aspects of employ-

ment, whether or not there is a collective bargaining agree-

ment in place, as long as any such agreement does not

cover the matter submitted for negotiations. The FLRA

4

added as a second ground of decision that federal agencies

at least have the discretion to engage in such so-called

mid-term bargaining under the FSLMRS, if the agency so

chooses, and therefore a union proposal like the one here

is within the scope of bargaining, and both a proper and

a mandatory subject for negotiations.

The Fourth Circuit had earlier disapproved the FLRA’s

understanding of the Federal Labor Statute, concluding

that “union-initiated mid-term bargaining . . . would un-

determine the congressional policies underlying the statute.”

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

1281 (4th Cir. 1992) (SSA); see FLRA Pet. App. 6a-

7a. Contra National Treasury Employees Union v. FLRA,

810 F.2d 295, 301 (D.C. Cir. 1987) (NTEU).

This brief addresses the first ground on which the

FLRA found the union’s collective bargaining proposai

proper—that the proposal simply restates the statutory

duty to bargain during the term of a collective bargaining

agreement.? In this regard the FLRA concluded that under

2 It is worthy of note, however, that this second ground of deci-

sion would be correct even if the first were not.

The Fourth Circuit, after holding in the SSA case that the Fed-

eral Labor Statute does not mandate union-initiated mid-term col-

lective bargaining, concluded, in United States Department of

Energy v. FLRA, 106 F.3d 1159 (4th Cir. 1997), that a proposal

in the negotiations for an initial collective bargaining agreement

permitting mid-term negotiations “is inconsistent with federal law

and therefore is not negotiable.” Jd. at 1168, citing 5 U.S.C.

§ 7117(a)(1).

In this case, however, the Fourth Circuit recognized that “agen-

cies are free to negotiate mid-term if they so choose.” FLRA Pet.

App. 10a. That latter conclusion is entirely correct. There is noth-

ing in the Federal Labor Statute precluding federal employers from

engaging in such negotiations. And there may well be circum-

stances in which an agency will perceive that acceding to a union

request to reconsider some policy or working condition during the

term of an agreement is in the agency’s best interest.

If an agency can negotiate mid-term on union proposals if it so

chooses, no reason appears why it would be inconsistent with the

Statute for the agency to agree in advance to do so. Indeed, an

agency may desire to do sc as a means of moving negotiations on

5

the Federal Labor Statute, as under the private sector labor

laws, collective bargaining “involves ongoing communica-

tion between the parties, unbroken by the existence of a

collective bargaining agreement,” so “that a contract does

not create a static period in the relationship between the

employer and the employees for the term of that agree-

ment.” U.S. Dept. of Health & Human Services, SSA,

Baltimore, Md., 47 FLRA 1004, 1016-17 (1993). Com-

pare Jacobs Mfg. Co., 94 NLRB 1214, 1219 (1951),

enf'd, 196 F.2d 680 (2d Cir. 1952) (mid-term bargain-

ing “eliminates the pressure upon the parties at the time

when a contract is being negotiated to raise those subjects

that may not then be of controlling importance,” and

“assures to both unions and employers that, if future con-

ditions require some agreement as to matters about which

the basic agreement along: The union may be willing to agree to

a particular provision only if it can be reconsidered at a time certain

during the term of the agreement. Such specific reopener provisions

are common in the private sector because the parties understand

that some terms may not be suitable for the entire term of the

agreement, depending upon how circumstances develop. And, ab-

sent a provision for mid-term bargaining as to matters not covered

by the agreement, the union may insist on negotiating to conclu-

sion upon provisions that it would otherwise be willing to leave

alone for the time being because they are of no immediate conse-

quence and never may be. Agencies may well perceive that it is

wiser to delay such negotiations because they may involve issues

that it proves unnecessary ever to resolve.

Union proposals for mid-term reopener provisions, moreover, if

otherwise lawful, come within the bargaining obligation as articu-

lated in the Federal Labor Statute, and are therefore mandatory

subjects of bargaining. Negotiating about whether to bargain con-

clusively now or, instead, later upon request, concerning a single

condition of employment or all unaddressed conditions of employ-

ment is negotiating “with respect to conditions of employment,”

(5 U.S.C. §7102(a)), and thus comes within the employee bar-

gaining rights under the Statute. See also 5 U.S.C. § 7103(a)(12)

(collective bargaining involves “agreement with respect to the con-

ditions of employment affecting . . . employees”). Nothing in the

Statute requires that the result of negotiations about a condition

of employment must be an inflexible rule in place for the entire

term of the contract, rather than a process for agreeing later upon

such conditions.

6

the parties have not sought, or have not been able to

obtain agreement, then some discussion of those matters

will be forthcoming when necessary.”)

1. It facilitates analysis to begin by setting out the

collective bargaining structure envisioned by the Fourth

Circuit.

First, according to the Fourth Circuit, a federal agency

is obliged to entertain union proposals within the scope of

bargaining only if the time period covered by that pro-

posal does not overlap with the time period covered by

any collective bargaining agreement already entered into

concerning any condition of employment within the scope

of bargaining. Thus, for example, if the union and the

employer reach agreement about certain conditions of

employment and chose to execute that agreement and then

continue to negotiate about other matters, such further

negotiations—at least as the negotiations concern union-

instigated proposals—are not within the statutory bargain-

ing obligation, and the employer can walk away from the

table.

In contrast, the practice and procedure of collective

bargaining generally as it has developed over the years

has never been confined within the kind of straight-jacket

created by the Fourth Circuit’s ruling that any agreement

in force precludes further bargaining during its term. On

the railroads the basic agreement traditionally has no term

and bargaining is “opened” on particular subjects without

disturbing the “unopened” provisions of the basic agree-

ment. In trucking, and in many other industries, a master

“area” agreement covering certain basics is settled and

signed and is then supplemented by local agreements on

matters peculiar to a locality, a company or a plant. And,

in longshoring there is a set of overlapping agreements

covering such discrete matters as hiring and referral to

work, wages and general working conditions, and the set-

tlement of disputes. Not surprisingly, then, the private

sector labor laws do not confine the duty to bargain as

the Fourth Circuit would confine the federal sector bar-

7

gaining duty, but rather recognize, and give proper scope

to, the protean nature of the bargaining process.

Second, according to the Fourth Circuit, a federal

agency has no duty to bargain once a collective bargain-

ing agreement has been entered into even if entirely new

circumstances affecting conditions of employment arise

during the term of the agreement. Yet, such circumstances

can arise for reasons outside the control of either party to

the agreement—a new technology, for example, or an un-

foreseen statutory change fundamentally affecting the na-

ture of an agency’s work and therefore the employees’ job

tasks—and can thereby profoundly affect employee work-

ing conditions.

Indeed, under the Federal Labor Statute, changes in

federal laws, rules and regulations may even alter the scope

of bargaining. Unions and federal employers are in many

instances precluded from negotiating on proposals covered

by such laws, rules and regulations. 5 U.S.C. § 7117.

Thus, if there is a narrowing change in the coverage of

any pertinent law, rule, or regulation during the term of

an extant collective bargaining agreement the scope for

bargaining may expand. Precluding union-initiated mid-

term bargaining until the agreement expires delays the

negotiation of matters that were not negotiable at the

time of the earlier negotiations but become negotiable in

this way.

The Fourth Circuit supposes that Congress limited a

federal agency’s statutory bargaining obligation so as not

to reach the impact of such new circumstances or such

an enlargement of the scope of bargaining, simply because

the parties had earlier entered into an agreement that, out

of necessity, in no way addressed those unforeseeable cir-

cumstances or that expansion in the scope of bargaining.

The likely result, of course, is that employee discontent

will fester during the term of an agreement that could not

possibly have addressed the reasons for that discontent.

Third, and critically, according to the Fourth Circuit,

during the term of a collective bargaining agreement, the

Federal Labor Statute imposes an entirely one-sided bar-

gaining obligation: Federal agencies are free to propose

changes in working conditions whether or not covered by

statutory management rights provisions. Luke Air Force

Base, Arizona, 49 FLRA 137, 137-38, 147 (1994);

Marine Corps Logistics Base, Barstow, California, 46

FLRA 782, 782-83 (1992); U.S. Department of Labor,

Washington, D.C., 44 FLRA 988, 988-89, 994-95 (1992).

And unions are obligated to bargain concerning those pro-

posals or forego any later negotiations regarding the

changes. U.S. Dep’t of the Air Force, Air Force Materiel

Command, Wright-Patterson AFB, Ohio, 51 FLRA 1532,

1536 (1996).

This asymmetry can only distort both negotiations for

initial agreements and mid-term negotiations: Federal

agencies, but not unions, can hold back during the original

negotiations proposed changes in working conditions and

raise them mid-term, or seriatim, when unions have less

leverage because they cannot make, or trade-off, their own

proposals. And the agencies, but not unions, can propose

changes in personnel policies and working conditions to

respond to externally-caused changed circumstances, with

the result that agencies can bargain concerning the impact

of external, unforeseen changes if management chooses,

but not if management does not so choose.

One would suppose that, had Congress determined to

impose such a one-sided bargaining relationship, funda-

mentally inconsistent with the longstanding understanding

in the private sector regarding the bilateral nature of the

bargaining relationship, the Legislature would have spelled

out its intent to do so in the Federal Labor Statute in no

uncertain terms. In fact, however, the Statute contains no

such terms. To the contrary the Statute’s terms establish

a bargaining obligation that is continuing, mutual, and

universal with regard to those conditions of employment

that are not within any express statutory excention—as we

now show.

9

2. The Federal Labor Statute was passed as “part of a

comprehensive revision of the laws governing the rights

and obligations of civil servants” and represents “the first

statutory scheme governing labor relations between federal

agencies and their employees.” Bureau of Alcohol, To-

bacco & Firearms v. FLRA, 464 U.S. 89, 91 (1983).

“The new Act . . . significantly strengthened the position

of public employee unions. . . .” over the limited role such

unions had under the series of Executive Orders that

governed federal labor relations before 1978. Id. at 92.

Congress’ judgment embodied in the FSLMRS is that

“labor organizations and collective bargaining in the civil

service are in the public interest,” (5 U.S.C. § 7101(a)),

for two reasons: First, Congress found that:

experience in both private and public employment

indicates that the statutory protection of the right of

employees to organize, bargain collectively, and par-

ticipate 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

(C) facilitates and encourages the amicable settle-

ments of disputes between employees and their em-

ployers involving conditions of employment. [5

U.S.C. § 7101 (a)(1).]

And, Congress found too that:

the public interest demands the highest standards of

employee performance and the continued development

and implementation of modern and progressive work

practices to facilitate and improve employee perform-

ance and the efficient accomplishment of the opera-

tions of the Government. [5 U.S.C. § 7101(a)(2).]

At the same time—and unlike the National Labor Rela-

tions Act, 29 U.S.C. § 151 et seq., and the Railway Labor

Act, 45 U.S.C. § 151 et seq., governing most private

sector collective bargaining relationships—Congress de-

10

limited the scope of federal collective bargaining ordi-

narily to exclude bargaining about wages, benefits, and the

other economic terms of employment set by law, (Fort

Stewart Schools v. FLRA, 495 U.S. 641, 649 (1990)),

and maintained the long-standing prohibition on federal

employee strikes (5 U.S.C. § 7116(b)(7)(A)).

Taken together, Congress’ express findings and the

limitations placed upon both the role of collective bar-

gaining and the protection of employee concerted activi-

ties indicate that in enacting the FSLMRS, Congress was

primarily interested in giving employees a “voice” in shap-

ing the day-to-day operations of the workplace, one of

several functions performed by collective bargaining

through a labor union. See Richard Freeman and James

Medoff. What Do Unions Do? ch. 6 (1984) (“The Exit-

Voice Tradeoff” ).

3. To accomplish this basic purpose, the Federal Labor

Statute “prescribe[s] certain rights and obligations of the

employees of the Federal Government and . . . establish[es]

procedures which are designed to meet the special require-

ments and needs of the Government.” 5 U.S.C. § 7101(b).

In particular, Congress included a number of different,

albeit functionally intersecting, provisions describing the

bargaining relationship in the federal sector.

The most basic employee right prescribed by the Fed-

eral Labor Statute is “the right to form, join, or assist

any labor organization,” which “includes the right... .

to engage in collective bargaining with respect to condi-

tions of employment through representatives chosen by

employees under thfe] [Statute].” 5 U.S.C. § 7102 (em-

phasis supplied). To implement this right, the Statute

provides for “exclusive recognition [of] a labor organiza-

tion . . . [that] has been selected as the representative, in

a secret ballot election, by a majority of the employees

in an appropriate unit... .” (5 U.S.C. §7111(a)), and

states that “{a] labor organization which has been accorded

exclusive recognition . . . is entitled to act for, and negc-

tiate collective bargaining agreements covering, all em-

ployees in the unit,” (5 U.S.C. § 7114(a)(1)).

11

Collective bargaining, in its turn, is defined as:

the performance of the mutual obligation of the rep-

resentative of an agency and the exclusive representa-

tive of employees 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 employees and to execute, if requested by either

party, a written document incorporating any collective

bargaining agreement reached .. . [5 U.S.C. § 7103

(a)(12)) (emphasis supplied ).]}.

And, a “collective bargaining agreement” is “an agreement

entered into as a result of collective bargaining pursuant to

the provisions of this chapter.” 5 U.S.C. § 7103(a)(8).

The FSLMRS, moreover, broadly defines the “conditions

of employment” subject to “collective bargaining” as those

“personnel policies, practices, and matters . . . affecting

working conditions. .. ,” (5 U.S.C. § 7103(a)(14)),

with certain stated exceptions not pertinent here.

The Federal Labor Statute, then, describes the right to

bargain collectively as a right going to covered conditions

of employment generally. As far as appears, the right to

bargaining collectively with regard to conditions of em-

ployment does not lapse once agreement is reached regard-

ing some conditions of employment. Certainly there is

nothing in the Statute exempting from the bargaining obli-

gation the conditions of employment not covered in any

agreement already negotiated. Indeed, by stating the

union’s right to bargain as encompassing the right to nego-

tiate “collective bargaining agreements” (5 U.S.C. § 7114

(a)(1) (emphasis supplied)), the Statute reenforces the

point that there is no statutory preclusion on negotiating

more than one agreement, covering different conditions of

employment. Similarly, the definition of “collective bar-

gaining agreement” covers any agreement reached as a re-

sult of bargaining over conditions of employment, whether

that agreement is broad or limited. Nothing in the statute

excludes from the definition of “collective bargaining

agreement” an agreement concerning a single condition of

12

employment or a few such conditions, leaving other con-

ditions of employment for possible later discussion and

agreement.

The Federal Labor Statute goes on to specify that

“[a]ny agency and any exclusive representative in any ap-

propriate unit . . . shall meet and negotiate in good faith

for the purposes of arriving at a collective bargaining

agreement.” 5 U.S.C. §7114(a)(4) (emphasis supplied).

The Statute then specifies in a single set of four subsections

the obligations encompassed in “[t]he duty of any agency

and an exclusive representative to negotiate in good faith.”

5 U.S.C. § 7114(b)(1), (2), (3) & (5) (emphasis sup-

plied); compare 5 U.S.C. § 7114(b)(4) (specifying one

aspect of the duty to negotiate in good faith, not here ap-

plicable, that applies only “in the case of any agency”).

The Statute makes it equally “an unfair labor practice for

an agency .. . to refuse to. . . negotiate in good faith

with a labor organization as required,” as “for a labor

organization . . . to refuse to . . . negotiate in good faith

with an agency as required.” 5 U.S.C. § 7116(a)-(a) (5)

& (b)-(b)(5). And again, the “duty of an agency and an

exclusive representative to negotiate in good faith” includes

the obligation “to meet at reasonable and convenient

places as frequently as may be necessary .. .” 5 U.S.C.

§ 7114(b)-(b)(3) (emphasis supplied).

The bargaining duty, thus, is in almost all respects both

“mutual” (5 U.S.C. § 7103(a)(12) (emphasis supplied) )

and symmetrical, with conjunctive and parallel provisions

making clear that the obligation of both parties to the

negotiations is, except as otherwise provided in one minor

respect, precisely the same. Nothing in the language or

structure of the Federal Labor Statute suggests that fed-

eral employers have broader authority to instigate negotia-

tions than do certified unions, or narrower responsibility

to negotiate on proposals raised by the other party. And,

while that mutual obligation requires that each party ap-

proach any negotiations over conditions of employment

with the purpose of reaching “a collective bargaining

13

agreement” (5 U.S.C. § 7114(a)(4)) as a result of the

negotiations, the Statute does not suggest that having

reached one agreement in earlier negotiations excuses the

parties from attempting to reach another agreement in a

second set of negotiations covering matters not negotiated

earlier.

Indeed, the respondents in this case, and the court below,

so understand the statute as it affects employer bargaining

proposals, recognizing that federal agencies may make

proposals to change working conditions after an agreement

has been negotiated, and are obligated to bargain about

such proposals on request if they are otherwise within the

scope of bargaining. In such negotiations, the statutory

definition of the duty to bargain still applies, including the

obligation to negotiate with the purpose of reaching “a

collective bargaining agreement,” and any agreement

reached as a result of the negotiations is “a collective bar-

gaining agreement,” albeit an additional (or supplemental )

agreement to any extant agreement. Compare NLRA

§ 8(d), 29 U.S.C. § 158(d) (describing the obligation to

bargain collectively as including “the negotiation of an

agreement,” a locution that has never been understood as

suggesting that there cannot be later negotiations also

directed at “negotiation of an agreement.”)

As to the substantive scope of bargaining, “[i]n general,

unions and federal agencies must negotiate over terms and

conditions of employment, unless a bargaining proposal is

inconsistent with existing federal law, rule, or regulation.”

Bureau of Alcohol, Tobacco & Firearms, supra, 464 U.S.

at 92; see 5 U.S.C. § 7117(a) (spelling out in detail which

regulations preclude negotiations, and providing that cer-

tain kinds of regulations are not preclusive unless the

FLRA determines that there is a “compelling need” for the

regulation). Further, “{t}he Act’s expansive duty to bar-

gain is subject to several . . . express exceptions,” (Library

of Congress v. FLRA, 699 F.2d 1280, 1284 n.16 (D.C.

Cir. 1983) (emphasis supplied)), enumerated in another de-

tailed section specifying the management rights not subject

14

to negotiation, as well as limitations on those management

rights permitting negotiation of procedures for implement-

ing Management's authority and arrangements for employ-

ees adversely affected, (5 U.S.C. § 7106).

Precisely because of the detail with which the duty to

bargain is described, “[t]he statutory framework . . . may

be envisioned as imposing a broadly defined duty to bar-

gain over conditions of employment that is subject only to

the express statutory exceptions.” Library of Congress, 699

F.2d at 1285. And, because those exceptions are quite

complex, the Federal Labor Statute provides elaborate

schemes, to be supplemented by FLRA regulations, for

determining whether or not a proposal is within the scope

of bargaining where there is a dispute regarding that ques-

tion between the parties at the bargaining table. 5 U.S.C.

§ 7117(b) and (c).

The substantive and procedural detail with which the

Federal Labor Statute covers questions concerning the

scope of bargaining strongly suggests that Congress did

not intend by its silence to impose a limitation on the em-

ployer bargaining obligation not contained in any of the

provisions creating exceptions to that obligation. Given

the less significant bargaining issues the Statute addresses,

the fair inference is that if Congress intended to exclude

from the scope of bargaining conditions of employment

that were not, and in many instances could not have been,

included in the original negotiations and agreement, the

Legislature would have spelled out that-exclusion in detail

as it did the exceptions for management rights and for

issues covered by laws and regulations.

It is very much to the point that any such exclusion

would, of course, require unions to try to anticipate, in

initial negotiations, any and all issues concerning conditions

of employment that are not yet of any immediacy but could

possibly arise during the term of the agreement. Yet, the

procedures that are established in the Federal Labor Stat-

ute for determining negotiability are ill-adapted to deter-

15

mining negotiability in the sky, rather than in the context

of a concrete dispute. Determination of whether there is a

“compelling need” for a regulation may well differ from

time to time, depending upon external circumstances. And,

the resolution of management rights disputes, as well, is

likely to be enhanced if the parties, and the FLRA, can

consider a ripe dispute in the context of an actual mana-

gerial decision, rather than a dispute in which the union

makes proposals to cover contingencies in managerial de-

cision-making that have not yet occurred and may never

occur.

In short, an analysis of the statutory language and struc-

ture shows that it is at least as true of the Federal Labor

Statute as it is of the NLRA that “the general purpose of

the Act . . . is to require employers to bargain as to em-

ployee demands whenever made to the end that industrial

disputes may be resolved . . .” NLRB v. Jacobs Mfg. Co.,

196 F.2d 680, 684 (2d Cir. 1952) (emphasis supplied).

4. The Fourth Circuit, however, concluded otherwise

in the SSA case and, in elaborating on SSA later, added

that “union-initiated mid-term bargaining . . . would under-

mine the congressional policies underlying the statute,”

Dept. of Energy, supra, 106 F.3d at 1163 (emphasis in

original), quoting SSA, 965 F.2d at 1281. Nothing in the

reasoning of SSA, however, undermines the conclusion that

Congress simply did not embody in the overall statutory

language or structure the one-sided, inflexible collective

bargaining regime the court of appeals supposes, and cer-

tainly did not do so with the clarity required to impose a

judicial interpretation of the Federal Labor Statute on the

FLRA, the agency entrusted by Congress with construing

and applying the statute. Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S. 837, 843 (1984)

(agency interpretation is entitled to deference if “the stat-

ute is silent or ambiguous with respect to the specific

issue.” )

a. The SSA opinion begins with the statement that

“[t}he starting point for our analysis . . . must be the

16

language of the statute.” 956 F.2d at 1284. That is, of

course, indubitably correct, as this Court has had occasion

to stress repeatedly in recent years. See, e.g., United States

vy. Alvarez-Sanchez, 511 U.S. 350, 356 (1994); Negonsett

v, Samuels, 507 U.S. 99, 104-05 (1993). But the SSA

analysis of the Federal Labor Statute’s language and struc-

ture ignores most of the relevant provisions and misreads

those upon which that analysis does rely.

(i) Primarily, SSA relies on the slim reed that the use

of the article “a” in the reference to “a collective bargain-

ing agreement” in §§ 7114(a)(4) & 7114(b)(1) (empha-

sis supplied) demonstrates that “Congress addressed the

duty to bargain in language that seems to contemplate

that such a duty arises as to only one, basic agreement.”

956 F.2d at 1284 (emphasis supplied). At the same time,

SSA dismisses the fact that “[tthe FSLMRS does use the

plural ‘agreements’ ” in § 7114(a)(1) “merely as a generic

statement that contemplates successive, not overlapping,

labor contracts.” 956 F.2d at 1284, n.1.

Picking and choosing in this manner between statutory

provisions that arguably pull in different directions is

hardly the business of a court reviewing an agency statu-

tory construction. In any event, as the discussion in point

3, supra, illustrates, the definitions of “collective bargain-

ing” and “collective bargaining agreement” in the Federal

Labor Statute make clear that the terms apply generically

to any negotiations concerning conditions of employment

and to any resulting agreement, respectively, and do not

delineate the scope of the negotating obligation.

Indeed, the “scope of the negotiating obligation is set

forth in § 7102,” (Fort Stewart Schools, supra, 495 U.S.

at 644), not § 7114(a)(4), and § 7102 does not use the

phrase “a collective bargaining agreement,” but rather

defines a general duty “to engage in collective bargaining

with respect to conditions of employment,” (5 U.S.C.

§ 7102(2)). And, as we have shown (point 3, supra),

there is nothing in the FSLMRS to suggest that this duty

ee 8m

17

is suspended during the term of a collective bargaining

agreement.

Moreover, the Fourth Circuit’s own reading of the Fed-

eral Labor Statute as a whole makes clear that the court

of appeals’ understanding of § 7114(a)(4) cannot be cor-

rect. That reading recognizes that “an agency [is] obli-

gated to bargain mid-term over the impact and implemen-

tation of changes in the conditions of employment initiated

by the agency.” 956 F.2d at 1284; see also Brief for the

Respondent in Opposition, at 12 (the Statute contemplates

that “the agency-employer will be required to bargain dur-

ing the term of a collective bargaining agreement . . .

where the agency initiates changes in the conditions of

employment.”) Thus, the Statute indubitably does contem-

plate negotiations during the term of an initial collective

bargaining agreement, and necessarily contemplates as well

overlapping agreements.

The generic statutory provisions delineating “the duty

of an agency and an exclusive representative to negotiate

in good faith,” (5 U.S.C. §7114(b)), apply on their face

as much to employer-initiated mid-term bargaining man-

dated by the FSLMRS as to any other negotiations man-

dated by the Statute, and any agreement reached as a re-

sult of such negotiations is a “collective bargaining agree-

ment” as defined by the Statute, (see 5 U.S.C. § 7103

(a)(8)). The references in § 7114 to “a collective bar-

gaining agreement”, therefore, certainly apply to mid-term

employer-instigated bargaining, and, as such, cannot indi-

cate an intention to limit the parties’ bargaining obligation

to negotiating and consumating a single agreement cover-

ing a particular time period. Rather, the point of that

reference can only be to specify the agreement toward

which any particular set of negotiations are directed.

Finally, that the Federal Labor Statute does “contem-

plate . . . overlapping[] labor contracts” is further con-

firmed by § 7114(c)(4), which specifies the procedure

for approving “[a] local agreement subject to a national

18

or other controlling agreement at a higher level.” 5 U.S.C.

§ 7114(c)(4).

In the overall statutory context, then, the phrase “a

collective bargaining agreement” in §§7114(a)(4) &

7114(b)(1) is most sensibly read as a generic statement

that each set of negotiations, however initiated, should be

undertaken “for the purposes of arriving at a collecitve

bargaining agreement” on the particular matters being

discussed in those negotiations. 5 U.S.C. §7114(a)(4).

(ii) The SSA court found further support for its read-

ing of the Federal Labor Statute in the fact that “Con-

gress did contemplate that an agency was obligated to

bargain mid-term over the impact and implementation of

changes in the conditions of employment initiated by the

agency. See 5 U.S.C. § 7106(b) (2) and (3).” 956 F.2d

at 1284. The provision for employer-instigated negotia-

tions is significant, in the court of appeals’ view, because

“(tlhe inclusion of a specific duty of mid-term effects

bargaining . . . suggests the inadvisability of reading a

more general duty into the statute.” Id.

But the statutory provision on which the SSA court re-

lied does not create any “specific duty” to engage in “mid-

term effects bargaining.” Rather, that provision, like all the

other provisions governing the duty to bargain collectively

in the Federal Labor Statute, is written generally, without

regard to whether the proposal triggering the duty to

negotiate is made during initial bargaining or after the

parties have entered into an initial agreement. See 5

U.S.C. §7106(b) (“[{nJothing in this subchapter shall

preclude any agency and any labor organization from

negotiating . . . procedures which management officials

of the agency will observe in exercising any authority

under this section; or . . . appropriate arrangements for

employees adversely affected by the exercise of any au-

thority under this section . . .”). Far from demonstrating

that Congress specified mid-term bargaining when it in-

tended such bargaining, then, the universally accepted un-

derstanding that Congress intended in enacting § 7106(b)

19

to require bargaining under that section whenever not

otherwise precluded by the Statute or by contract points

to the opposite conclusion—that Congress did not include

an express limitation on mid-term bargaining with respect

either employer or union initiated proposals because no

such limitation was intended.

b. The SSA court, in addition, four’ support for its

conclusion that “an agency’s duty to bargain arises in

only two contexts”—“during negotiations leading to ‘a

basic collective bargaining agreement’” and “in response

to mid-term changes by the agency in conditions of em-

ployment,” (SSA, 956 F.2d at 1285), in the following

passage from the Senate Report accompanying the Senate

bill to reform federal sector labor relations:

[The bill] provides that the agency and the labor or-

ganization shall negotiate in good faith for the pur-

pose of arriving at an agreement. [4] The parties

have a mutual duty to bargain not only with respect

to those changes in established personnel policies pro-

posed by management, but also concerning negotiable

proposals initiated by either the agency or the exclu-

sive representative in the context of negotiations lead-

ing to a basic collective bargaining a ent. Where

agency Management proposes to change established

personnel policies, the exclusive representative must

be given notice of the proposed changes and an op-

portunity to negotiate over such proposals to the

extent they are negotiable. [956 F.2d at 1284-85,

quoting S. Rep. No. 969, 95th Cong., 2d Sess., 104

(1978).]

(i) As a general matter, of course, legislative history

may not be used to override clear statutory language.

See, e.g., West Virginia Univ. Hospitals, Inc. v. Casey,

499 U.S. 83, 98-99 (1991); United States v. Ron Fair

Enterprises, 489 U.S. 235, 211 (1989). For all the rea-

sons discussed above, nothing in the FSLMRS suggests

the nonmutual, one-sided mid-term bargaining obligation

the Fourth Circuit fead into the above-quote passage of a

20

single committee report, and there is therefore no basis

for resorting to legislative history in that regard.

Additionally, “legislative history that cannot be tied to

the enactment of specific statutory language ordinarily

carries little weight in judicial interpretation of the stat-

ute.” American Hospital Association v. NLRB, 499 U.S.

606, 617 (1991). The Senate bill provision discussed in

this passage—S. 2640, 95th Cong., 2d Sess. § 7215(a)

(1978)— is not the same as present §§ 7114(a) and (b),

and did not contain the phrase “a collective bargaining

agreement,” the only actual operative statutory language

upon which the SSA court relied in interpreting the Fed-

eral Labor Statute. Rather, the Senate bill section stated

that “the exclusive representative of employees in the

unit . . . is entitled to act for and negotiate agreements

covering all employees in the unit.” S. 2640, § 7215(a)(1)

(emphasis added).

Further, the Senate bill, as the snippet of legislative

history quoted confirms, did intend to impose a duty on

federal sector employers and unions to “negotiate agree-

ments,” (S. 2640, § 7215(a)(1)), that encompassed not

only the negotiation of “a basic collective bargaining

agreement” but also the negotiation of more limited agree-

ments resolving disputes over “agency management pro-

pos[als] to change established personnel policies,” (S. Rep.

No. 969, supra, at 104). And, there is nothing in the Sen-

ate bill to indicate that the duty to “negotiate agreements”

was limited during the term of any basic collective bar-

gaining agreement to agency-initiated negotiations, much

less that purports to explain why only management

should be allowed to initiate mid-term bargaining. The

Senate Report in other words, does not provide support for

the Fourth Circuit’s construction of the term “a collective

bargaining agreement” in § 7114 as finally enacted.*

3 When the Senate Report meant to preclude mid-term bargain-

ing, the Report was quite express on the point. Thus, in explaining

§ 7282 of the Senate bill, which allowed federal employees to take

paid “official time” for certain negotiations, the Senate Report

stated that grants of official time were limited to negotiations

=

21

(ii) To this point, we have indulged the SSA court’s

notion that the Senate Report is the key to understanding

the duty to bargain under FSLMRS. In fact, however, the

Senate Report is of little pertinence to divining Congres-

sional intent in passing the final Federal Labor Statute.

The Senate bill was replaced wholesale by an amendment

introduced in the House of Representatives by Representa-

tive Udall, and that amendment, with exceptions not here

pertinent, was the basis for the Statute as enacted.

The F*ouse version of the bill that became the FSLMRS

provided for a considerably wider range of collective bar-

gaining than the Senate bill. See National Treasury Em-

ployees Union v. FLRA, 691 F.2d 553, 559-561 (D.C.

Cir. 1982); compare, e.g., 124 Cong. Rec. H9649 (daily

ed. Sept. 13, 1978) (remarks of Rep. Ford) (Udall

amendment “make[s] clear . . . that the scope of bargain-

ing would be substantially broadened from that permitted

agency management under the [Executive [O]rder]” with

S. Rep. No. 969 supra (“The scope of negotiations . . . is

the same as under . . . [the] Executive Order.”). While

there were no changes from the Senate to the House bill

directly pertinent to the question of mid-term bargaining,

that is because nothing in either bill, or in the Federal

Labor Statute as finally enacted, places any limitation

relevant to mid-term bargaining on the general scope of

bargaining, as we have already explained.

The general thrust of the legislative history of the bill

that was enacted, the Udall amendment, confirms that it

is this omission of any explicit limitation that is significant.

“relating to the negotiation or renewal of a basic collective bargain-

ing agreement, as opposed to negotiations which arise out of cir-

cumstances during the term of the basic agreement (midcontract

negotiations).” S. Rep. No. 969 at 112 (emphasis added). (This

limitation on “official time” was not included in the bill as finally

enacted. Bureau of Alcohol, Tobacco & Firearms v. FLRA, 672 F.2d

732, 736-737 (9th Cir. 1982), rev’d in part on other grounds, 464

U.S. 89, 92 (1983), see American Federation of Government Em-

ployees v. FLRA, 750 F.2d 1438, 147 (D.C. Cir. 1984)).

22

For that history makes clear that Congress’ actual intent

was to enact “the general obligation to bargain in good

faith over conditions of employment,” to make the limits

on that obligation express so as to preclude limiting ad-

ministrative interpretations—and to proceed in that way

in order to “change the current situation and, wherever

possible, encourage both parties to work out their differ-

ences in negotiations.” 124 Cong. Rec. H9649 (daily ed.

Sept. 13, 1978) (remarks of Rep. Ford); see also 124

Cong. Rec. H9637 (daily ed. Sept. 13, 1978) (remarks of

Rep. Clay) (“In enacting {the Federal Labor Statute ]

Coagress will free both agency management and employee

representatives from the strictures of the past, and thereby

encourage both management and labor to engage in the

kind of relationship that, in the private sector, has fostered

the single most productive economy in the world.”)

c. The SSA court also found it significant that “[t]he

FLRA has presented no evidence that union-initiated mid-

term bargaining occurred under the Executive Order” that

governed federal sector labor relations prior to the enact-

ment of the FSLMRS. 956 F.2d at 1286.

In the first place, as already discussed, the point of the

Udall amendment was intended precisely to preclude reli-

ance on pre-1978 interpretations under the Executive

Orders in elaborating the new Federal Labor Statute bar-

gaining regime. See also, 124 Cong. Rec. H9637 (daily

ed. sept. 13, 1978) (remarks of Rep. Clay) (the Statute

“obviously represents congressional dissatisfaction with the

state of labor-management relations in the Federal service

under the various oversight bodies now established”) ; id.

at H9638 (“the scope of collective bargaining under the

act would be greater than that under the order as inter-

preted by [the Federal Labor Relations Council];” id. (the

Statute “constitutes a clear rejection of the Council’s inter-

pretive techniques” because of the Council’s “haste to

restrict the scope of bargaining.”)

The fragmentary Executive Order experience is, in any

event, of a limited and ambiguous nature. The Assistant

a om

23

Secretary of Labor for Labor Management Relations, the

official with responsibility for administering the Executive

Order, expressed the view that “a term and condition of

employment, although not treated expressly in the parties’

most recent negotiated bargaining agreement, became and

remained a matter upon which both [labor] and [manage-

ment] were obligated to meet and confer if either desired

a modification.” Dept. of Transportation, Federal Avia-

tion Administration, 5 A/SLMR 344, 347 (1975) (em-

phasis added). Consistent with this view, the Report and

Recommendations of the Federal Labor Relations Council

on the Amendment of Executive Order 11491, As

Amended (January 1975), stated that “[s]ection 11(a)

[of the Executive Order] comprehends an obligation to

‘negotiate’ with respect to midcontract changes in estab-

lished personnel policies and practice and matters affect-

ing working conditions.” Legislative History of the Fed-

eral Service Labor-Management Relations Statute, Title

VII of the Civil Service Reform Act of 1978 ( “Leg.

Hist.”), at 1313 (Comm. Print 1979).

Both of these statements on the Executive Order law

are congruent with the FLRA’s interpretation of the Fed-

eral Labor Statute, and not the Fourth Circuit’s. And,

while the one case discussed in this section of the FLRC

Report did involve bargaining over management-initiated

changes, the rationale for mid-term bargaining extended

to union-initiated proposals as well:

The Order is predicated on an assumption that “the

well-being of employees and efficient administration

of the Government are benefitted by providing em-

ployees an opportunity to participate in the formula-

tion and implementation of personnel policies and

practices affecting the conditions of their employ-

ment. . . .” We have found no reason during the

course of the current review to doubt the wisdom of

this assumption, nor have we found any basis to con-

clude that employee participation in these matters is

any less critical to their well-being, or the efficient

administration of Government during the term of an

24

agreement, than it is during the relatively brief period

of formal contract negotiations. On the contrary, the

fact that changes in established personnel policies and

practices and matters affecting working conditions

during the term of an agreement are often the result

of changes in circumstances which were not foreseen

by either party during the period of contract negotia-

tions make it appear likely that employee participa-

tion at such junctures may be even more important

than during the regular negotiation period. [/d. at

1312-13.]*

d. In the end, the SSA decision rests not on the statu-

tory language or on the legislative history addressed to the

particular issue of union-initiated mid-term bargaining, but

rather on the court of appeals’ view that “{u)nion-initiated

mid-term bargaining risks serious interference with thie]

most basic of statutory objectives,” viz., “protect[ing]

the ‘paramount right of the public to as effective and

efficient a Government as possible.” 956 F.2d at 1288,

quoting H.R. Conf. Rep. No. 1717, 95th Cong., 2d Sess.

154 (1978).

4 The FLRA’s determination in Internal Revenue Service (IRS 1),

17 FLRA 731, 736 (1985), reversed, NTEU, supra, cited in SSA,

956 F.2d at 1286, that “an obligation to negotiate union initiated

mid-term bargaining proposals did not exist under the Executive

Order” rested on an obvious misreading of the Assistant Secretary

of Labor’s decision in Army and Air Force Exchange Service,

Capitol Exchange Region Headquarters, 2 Rulings in Request for

Review 561 (Ass’t Sec. of Labor 1976). While the Acting Regional

Administrator dismissed a refusal to bargain complaint in that

case in part on the grounds that there was no duty to engage in

mid-term bargaining over union-initiated proposals, the Assistant

Secretary of Labor did not sustain his decision on that ground.

Rather, the Assistant Secretary found that “the parties’ negotiated

agreement” already covered the union proposal and that, even so,

“the parties, in fact, met and conferred over” the union mid-term

proposal. Jd. And, the Federal Labor Relations Council later con-

firmed that this was the basis for the dismissal of the complaint

in that case. Army and Air Force Exchange Service, 5 FLRC 167

(1977). There is nothing in the final disposition of that case sug-

gesting that there was no general duty to bargain over mid-term

union proposals under the Executive Order.

co le A TOT RN ly ally ns Ce Ml PA Ne AE ale a te

25

Relying upon the FLRA’s now superseded decision in

IRS 1, the SSA court advanced the following reasons for

concluding that “union-initiated midterm bargaining would

- . . contravene many of the basic purposes of the

FSLMRS”:

[UJnion-initiated mid-term bargaining would diminish

“the ability of the parties to rely upon . . . basic [col-

lective bargaining] agreements as a stable foundation

for their day-today relations.” JRS J, 17 FLRA at

736. Moreover, “[p]arties would be discourage from

engaging in the effort, as part of negotiation of their

basic collective bargaining agreement, to foresee

potential labor-management relations issues, and re-

solve those issues in as comprehensive a manner as

practicable.” /d. Rather, as explained above, permit-

ting union-initiated midterm bargaining “would en-

courage dispersal of the collective bargaining process”

and thereby result in seriatim mid-term bargaining—

and then seriatim FSIP arbitration—over individual

issues raised midterm. Jd. at 736-737. Such an ap-

proach to federal-sector labor relations would “en-

hance the prospect for protracted conflict” that under-

mines an agency’s effectiveness and would result in

the “continuous expenditure of resources for both

management and [union] representatives.” Jd. at

737. [956 F.2d at 1288.]

(i) As the District of Columbia Circuit noted in

NTEU v. FLRA, supra, the most immediate response to

the point that “mid-term bargaining over union proposals

would inject uncertainty into labor-management relations,

undermine stability in the workplace, and increase the

prospect for conflict” is that “Congress . . . has already

drawn the opposite conclusion” . . .” 810 F.2d at 300.

For, as a general matter, courts may not override the

operative statutory language and structure in pursuit of

a generally-stated statutory purpose. Brogan v. United

States, US. , 118 S. Ct. 805, 809 (1998);

Director, Office of Workers’ Compensation v. Newport

News, 514 U.S. 122, 135-36 (1995).

26

Even if one entertains the contrary possibility, the

Fourth Circuit entirely imsunderstood Congress’ purpose

in enacting the FSLMRS. The statement that the Statute

is to be interpreted “in a manner consistent with the

requirement of an effective and efficient Government,”

(5 U.S.C. § 7101(b)), is part of a more comprehensive

statement of Congress’ purpose premised upon the clearly

stated view that “labor organizations and collective bar-

gaining in the civil service are in the public interest,”

(5 U.S.C. § 7101(a)). Thus, the direction that “[t}he pro-

visions of [the FSLMRS] should be interpreted in a man-

ner consistent with the requirement of an effective and

efficient Government,” was made against the background

of specific Congressional “find{ings],” based on “experi-

ence in both private and public employment,” that “pro-

tection of the right of employees to organize, bargain

collectively, and participate through labor organizations

of their own choosing in decisions which affect them” both

“contributes to the effective conduct of public business”

and “facilitates and encourages the amicable settlements

of disputes between employees and their employers involv-

ing conditions of employment.” 5 U.S.C. § 7101.

In short, although the Fourth Circuit may disagree,

Congress’ view was that permitting employees to express

their views through their union concerning conditions of

employment in most instances ultimately advances rather

than compromises the cause of efficient government. See

pp. 21-22, supra (summarizing legislative history so indicat-

ing). And, it has been the “experience in both private and

public employment,” (5 U.S.C. §7101(a)), that “mak-

ing mandatory the discussion of bargainable subjects not

already covered by a contract . . . encourage[s] the parties

.. . to arrive at joint decisions with respect to bargainable

matters, that, at least to the party requesting discussion,

appear at the time to be of some importance,” (Jacobs

Mfg., supra, 94 NLRB at 1217). In the absence of any

contrary indication in the Federal Labor Statute’s various

general descriptions of the duty to bargain, there is no

occasion for an interpretation that overrides the express

27

Statutory balance between the employees’ right to partici-

pate in the formulation of day-to-day policies governing

the workplace and federal employers’ managerial authority,

particularly where that “interpretation”, by “allow[ing]

management to retain the right to raise new issues, but

. » . deny[ing] that right to the employees’ representatives

would produce an inequality in bargaining power” and

thereby “violate a guiding purpose of the statute.” NTEU,

810 F.2d at 301.

(ii) Nor do the Fourth Circuit’s more particularized

fears concerning the impact of union-initiated mid-term

bargaining have sufficient force to justify that court’s in-

terpretative tour-de-force.

First, the court of appeals’ expressed concerns about

seriatim mid-term bargaining are largely answered by the

FLRA’s conclusion that the statutory bargaining obliga-

tion with regard to a particular subject matter is met in

bargaining for an initial collective bargaining agreement

where the agreement “covers” that matter. By recognizing

this inherent, bilateral limitation on the duty to bargain

under the Federal Labor Statute, the Authority met a per-

ceived “need to provide the parties to such an agreement

with stability and repose with respect to matters reduced

to writing in the agreement.” U.S. Department of Health

and Human Services, Social Security Administration 47

FLRA 1004, 1017 (1993), quoting Dept. of Navy,

Marine Corps Logistics Base v. FLRA, 962 F.2d 48, 59

(D.C. Cir. 1992).

In this regard, the FLRA does not “require an exact

congruence between a provision of a contract and a pro-

posal offered by a union in order for an agency to have

no duty to engage in mid-term bargaining on the matter.

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

supra, 47 FLRA at 1017. Rather, if “the subject matter

of the [mid-term] proposal is . . . commonly considered

to be an aspect of the matter set forth in [a] provision . . .

28

negotiations [will be] presumed to have foreclosed further

bargaining over the matter, regarding of whether [such

foreclosure] is expressly articu)e*ed in the provision.” /d.

at 1018. And, “in cases where # is difficult to determine

whether the subject matter sought to be bargained is an

aspect of matters already negotiated, the Authority will

examine all of the record evidence, including the parties’

bargaining history, and decide whether the parties reason-

ably should have contemplated that the agreement would

foreclose further bargaining in such instances.” U.S. Dept.

of Justice, Immigration and Naturalization Service, 51

FLRA 1274, 1277 (1996).

Second, the Fourth Circuit’s concerns regarding the

FLSMRS’ dispute resolution procedure are equally

groundless.

The court of appeals’ fear that unions could strategically

withhold bargaining proposals supposes that mid-term bar-

gaining always arises from circumstances the parties could

have perceived or did perceive at the time of initial bar-

gaining. That, of course, is not the case; if it were, then

agency-initiated mid-term changes in conditions of employ-

ment would also be precluded, yet it is common ground

that agency-initiated proposals for such changes are nego-

tiable. And, indeed, the fact that in the federal sector,

changes in applicable federal regulations can change the

scope_of bargaining makes it more likely than in the pri-

vate sector that unions will be faced with new, unforesee-

able circumstances affecting conditions of employment and

the scope of bargaining during the term of an agreement.

Moreover, under the Fourth Circuit’s view, the em-

ployer, but not the union, could engage in precisely such

strategic withholding of negotiable proposals, creating an

imbalance in bargaining power in the initial negotiations;

if both parties have the power to engage in such strategies,

it is more likely that neither will. Indeed, during the

29

impasse resolution procedures in the Federal Labor Statute

(5 U.S.C. § 7118), the Federal Service Impasses Panel

can consider allegations that such strategic manipulation

of the bargaining process has occurred, and take those

allegations into account in resolving any impasse.

Most importantly, the court of appeals’ skewed version

of the Federal Labor Statute’s bargaining regime is much

more likely to lead to a dysfunctional bargaining relation-

ship that the alternative actually embodied in the Statute.

Under the Fourth Circuit’s version of that regime, unions,

but not employers, are obliged to engage in speculative

bargaining during initial negotiations regarding matters

that are of no immediate concern but could conceivably

become so in the future. Such hypothetical bargaining

would multiply the divisive issues to be resolved in bar-

gaining unnecessarily, not only because of sheer prolifera-

tion of issues but also because parties negotiating without

a concrete appreciation of the interests at stake are less

likely to be able to resolve their differences through trade-

offs and compromises. Moreover, the statutory negotiabil-

ity appeals processes (5 U.S.C. § 7117(b) & (c)) will

only exacerbate the delays created by the union need to

engage in such speculative negotiations. Under those proc-

esses—which have no parallel under the NLRA or RLA—

negotiations can be delayed while the parties’ appeal to

the FLRA regarding the negotiability of proposals under

the Statute. The more issues involved in the negotiations,

the more opportunity for such delays. And, as noted

earlier, the statutory negotiability appeals processes are

ill-adapted to determining the negotiability of speculative

proposals.

In the end, however, these competing policy considera-

tions are beside the point. Rather, given the broad defini-

tion of collective bargaining in the FSLMRS and the ab-

sence of any indication that there are temporal or prior

agreement limitations on the duty to bargain, the FLRA’s

construction of the Statute as requiring a limited range of

30

midterm bargaining is certainly “a reasonable one” that a

reviewing court “must accept.” JRS v. FLRA, 494 US.

922, 928 (1980).

CONCLUSION

For the reasons stated above, the judgment of the

United States Court of Appeals for the Fourth Circuit

should be reversed.

Respectfully submitted,

MARK D. ROTH JONATHAN P. HIATT

80 “F” Steet, N.W. JAMES B. CoPPEss

Washington, D.C. 20001 815 16th Street, N.W.

KEVIN M. GRILE Washington, D.C. 20006

25 West Chicago Avenue MARSHA §S. BERZON

Suite 410 177 Post Street, Suite 300

Chicago, IL 60610 San Francisco, CA 94108

LAURENCE GOLD *

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 833-9340

* Counsel of Record