American Federation of Government Employees, Afl-Cio, Local 2441 v. Federal Labor Relations Authority

864 F.2d 178, 274 U.S. App. D.C. 375, 130 L.R.R.M. (BNA) 2243, 1988 U.S. App. LEXIS 17677, 1988 WL 138642
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 30, 1988
Docket87-1820
StatusPublished
Cited by22 cases

This text of 864 F.2d 178 (American Federation of Government Employees, Afl-Cio, Local 2441 v. Federal Labor Relations Authority) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Federation of Government Employees, Afl-Cio, Local 2441 v. Federal Labor Relations Authority, 864 F.2d 178, 274 U.S. App. D.C. 375, 130 L.R.R.M. (BNA) 2243, 1988 U.S. App. LEXIS 17677, 1988 WL 138642 (D.C. Cir. 1988).

Opinion

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

Reduced to its bare essentials, this case decides whether a local union can force the Bureau of Prisons to bargain over the proposed imposition of a requirement that guards wear neckties (and, in some cases, blazers) on the job. Local 2441 of the American Federation of Government Employees (“AFGE” or the “Union”) petitions this court for review of an order of the Federal Labor Relations Authority (“FLRA” or the “Authority”) dismissing an unfair labor practice charge against the *180 United States Department of Justice, Bureau of Prisons (the “Bureau”). The charge, brought by the General Counsel of the Authority, alleged that the Bureau had violated §§ 7116(a)(1) and (a)(5) of the Federal Service Labor-Management Relations Statute (“FSLMRS” or the “statute”) by refusing to negotiate with the Union over the Bureau’s proposed changes in uniform for correctional officers at the Federal Correctional Institute in Morgantown, West Virginia (“FCI-Morgantown”). In dismissing the unfair labor practice charge, the Authority concluded that the Bureau’s uniform changes involved a “means of performing work,” and as such were excepted from the Bureau’s statutory duty to bargain. 5 U.S.C. § 7106(b)(1). Because we conclude that the Authority’s determination was neither arbitrary nor capricious and was supported by substantial evidence, we deny the petition for review.

I. Background

A. The Statute and the Prevailing FLRA Interpretation of It

We introduce this knotty problem by laying out the relevant substantive legal standards governing federal service labor-management relations. Once employees in a unit of the federal government have chosen by majority vote to be represented by a particular labor organization, that labor organization becomes the exclusive bargaining representative of the unit employees. 5 U.S.C. § 7111(a). The agency is required by the FSLMRS to negotiate in good faith with that labor organization over “conditions of employment,” except for those particular matters that are excluded from the duty to bargain by federal law or government-wide rules or regulations. New York Council, Ass’n of Civilian Technicians v. FLRA, 757 F.2d 502, 508 (2d Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985) (“ACT”); 5 U.S.C. §§ 7103(a)(12), 7114(a)(4), 7117(a). The term “conditions of employment” is defined broadly to include “personnel policies, practices, and matters ... affecting working conditions,” 5 U.S.C. § 7103(a)(14). If an agency refuses to negotiate in good faith with an exclusive bargaining representative as to matters covered by the duty to bargain, the agency is guilty of an unfair labor practice. 5 U.S.C. § 7116(a)(1), (a)(5).

But there are certain matters excluded from the duty to bargain; in particular, the FSLMRS contains a “management rights” provision. 5 U.S.C. § 7106. Section 7106(a) lists matters over which an agency is not permitted to bargain. Section 7106(b)(1) sets out matters over which bargaining may take place “at the election of the agency.” Included in the latter category are decisions concerning the “methods, and means of performing work.” 5 U.S.C. § 7106(b)(1). As to these decisions, the agency is permitted but not required to negotiate with the labor organization. Id.; see American Federation of Gov’t Employees, Local 3013 v. FLRA, 762 F.2d 183, 183 (1st Cir.1985); ACT, 757 F.2d at 508. 1

*181 The FLRA has established a two-pronged test for determining whether § 7106(b)(1) excepts a proposed practice from the agency’s duty (though not its authority) tó bargain. The first prong examines the agency’s proposed change of policy, while the second examines the union’s counter-pro-posáis. See United States Dept. of Justice, INS, 31 F.L.R.A. 145, 152-53 (1988).

Under the first prong of the inquiry, the Authority asks whether there exists a “direct and integral relationship” between the agency’s proposed new practice and the accomplishment of the agency’s mission. Appendix (“App.”) 18; United States Dept. of Justice, INS, 31 F.L.R.A. at 152. The Authority has elaborated on this “direct and integral” test by stating that a “means of performing work” under § 7106(b)(1) encompasses “anything used to attain or make more likely the attainment of a desired end, and ... refers to ‘any instrumentality, including an agent, tool, device, measure, plan, or policy used by the agency for the accomplishing or furthering of the performance of its work.' ” Division of Military and Naval Affairs, State of New York, 15 F.L.R.A. 288, 291 (1984) (quoting National Treasury Employees Union, 2 F.L.R.A. 255, 258 (1979)), aff'd sub nom. ACT, 757 F.2d 502 (2d Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985); see App. 18.

If the Authority determines that the proposed agency policy does bear a “direct and integral relationship” to the agency’s mission, then it proceeds to the second prong of the inquiry, asking whether the counter-proposal advanced by the union would “directly interfere” with the mission-related purpose of the agency’s new practice. App. 20-21; American Federation of Gov’t Employees, 25 F.L.R.A. 1028,1031 (1987). If it would, then the agency has no duty to bargain; if it would not, then the agency must bargain over the counterproposal and is guilty of an unfair labor practice so long as it refuses to do so. Id. 2

*182 In applying the “direct interference” test, the Authority has required agencies to bargain over union proposals that would tinker with agency policy without defeating its purpose. See United States Dept. of Justice, INS, 31 F.L.R.A. at 147, 153; American Federation of Gov’t Employees, 25 F.L.R.A. at 1030-31. More disruptive adjustments to agency policy have been held to be outside the agency’s duty to bargain, on grounds of “direct interference.”

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Bluebook (online)
864 F.2d 178, 274 U.S. App. D.C. 375, 130 L.R.R.M. (BNA) 2243, 1988 U.S. App. LEXIS 17677, 1988 WL 138642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-federation-of-government-employees-afl-cio-local-2441-v-federal-cadc-1988.