National Treasury Employees Union v. Federal Labor Relations Authority

910 F.2d 964, 285 U.S. App. D.C. 464, 135 L.R.R.M. (BNA) 2118, 1990 U.S. App. LEXIS 13869, 1990 WL 116046

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 14, 1990
• Docket: 87-1165
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge SILBERMAN.

Dissenting Opinion filed by Circuit Judge MIKVA.

SILBERMAN, Circuit Judge:

The National Treasury Employees Union Chapter 222 petitions for review of an order issued by the Federal Labor Relations Authority (“FLRA”), claiming that the order, directing the IRS to bargain with the union, is legally inadequate. We deny the petition.

I.

The Houston District Office of the IRS in 1983 relocated two groups of its employees to a new suburban location. One group of nearly 400 employees came from the downtown Federal Building, and another 350 employees moved from the IRS’s Westpark office. Although the IRS did not provide parking.for its employees at either of the two old locations, the downtown location was accessible by public transportation (commercial parking was also available), and the employees previously assigned to Westpark typically had enjoyed free street parking there.

The agency notified the union of the pending move in September of 1982, and the parties thereafter negotiated several matters relating to the move,¹ reaching agreement by December on all issues except parking facilities for employees at the new location. Although the IRS was not altogether forthcoming with information about the parking facilities, the union eventually learned that the General Services Administration had leased 650 parking places at the new location for employee and visitor use; the union then sought to limit the number of spaces reserved for management. The union also proposed a cap on the parking charges that employees would have to pay — apparently asking the agency to, at least in part, subsidize employee parking.

The IRS resisted the union’s proposals; although the agency took a number of different positions, it ultimately asserted that it had no obligation to negotiate over the union’s proposals because the IRS could not legally subsidize parking under the Travel Expense Act, see 5 U.S.C.A. §§ 5701-5752 (West 1980 & Supp.1990), and because the union’s proposal would interfere with the agency’s ability to determine its own budget, see 5 U.S.C. § 7106(a)(1). The union filed an unfair labor practice charge, and the AU and the Authority on appeal held that the agency had not bargained in good faith, in violation of 5 U.S.C. §§ 7116(a)(1) and (5), and ordered the agency to do so. See United States Dep’t of the Treasury, Internal Revenue Serv. and United States Dep’t of the Treasury, Internal Revenue Serv. Houston Dist. and Nat’l Treasury Employees Union and Nat’l Treasury Employees Union, Chapter 222, 25 F.L.R.A. 843 (1987). The FLRA rejected the IRS’s nonnegotiability defense because it thought the union’s proposals were directed primarily at the distribution of the assignment of leased parking places between manage- ■ ment and bargaining unit employees. The Authority, moreover, viewed the union’s proposals for a cap on parking charges as flexible; the union had proposed a parking subsidy only to the extent the agency could provide it legally.

The IRS has not appealed the Authority’s determination. The union has petitioned for review, however, because the Authority denied the union’s requested remedy, a retroactive bargaining order (“RBO”). In other words, the union had asked that the Authority direct the IRS to bargain with the union over the parking proposals with the condition that whatever agreement that ultimately emerged be automatically applied retroactively to the date of the unfair labor practice. The Authority declined to order such a remedy in this case, relying on the criteria for issuing RBO’s it set forth in Environmental Protection Agency and American Federation of ■ Government Employees, 21 F.L.R.A. 786 (1986) (“EPA and AFGE”). In that earlier case, the FLRA announced that in determining whether to issue such an order it would weigh the effect on agency operations, whether the agency’s refusal to bargain came in the face of a prior Authority decision that the issue was negotiable, and whether or not the agency refused to comply with impasse resolution procedures. The Authority further noted that if the parties bargained to an impasse on the issue, the Federal Service Impasse Panel, which is empowered in that event to fashion an agreement, could then make the parking provisions retroactive. See id. at 788-91.

A divided panel of this court granted the union’s petition for review, see National Treasury Employees Union v. Federal Labor Relations Auth., 856 F.2d 293, 296 (D.C.Cir.1988), but the full court vacated the panel decision on November 23, 1988 and granted rehearing en banc, see 856 F.2d at 308 (D.C.Cir.1988).

II.

When a federal court of appeals reviews an administrative agency’s choice of remedies to correct a violation of a law the agency is charged with enforcing, the scope of judicial review is particularly narrow. Almost fifty years ago the Supreme Court, in reviewing a National Labor Relations Board remedial choice, explained why:

Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board’s discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941). Nevertheless, petitioner asserts that Congress did not intend to grant the FLRA discretion to choose a remedy to correct an agency’s unfair labor practice that would fall short of making employees “whole,” and it contends that the only way that the employees can be made “whole” here is by use of an RBO.

The language of the Federal Service Labor-Management Relations Act, 5 U.S.C.A. §§ 7101-7135 (West 1980 & Supp.1990), appears to us, however, to exude indications of a broad congressional delegation of discretion to the FLRA to fashion appropriate remedies for an unfair labor practice. Section 7105(g)(3) states that the Authority may “take any remedial action it [the FLRA] considers appropriate to carry out the policies” of the federal labor statute. 5 U.S.C. § 7105(g)(3) (emphasis added). Congress then broadly listed in section 7118(a)(7) the measures the FLRA could implement to correct violations of the statute:

(a)(7) If the Authority ... determines ... that the agency or labor organization named in the complaint has engaged ... in an unfair labor practice, then [the Authority] ... shall issue ... an order—

(A) to cease and desist from any such unfair labor practice in which the agency or labor organization is engaged;

(B) requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect;

(C) requiring reinstatement of an employee with backpay in accordance with section 5596 of this title; or

(D) including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action as will carry out the purpose of this chapter.

5 U.S.C. § 7118(a)(7) (emphasis added). Subparagraph (D) underscores Congress’ intent, that the FLRA be granted discretion to choose what it deems the appropriate responses to an unfair labor practice.²

Petitioner’s textual argument, as we understand it, is that the words “shall issue ... an order” in section 7118(a)(7) oblige the Authority, in the case of an agency’s refusal to bargain, to issue the order described in subparagraph (B) — one “requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect.” (emphasis added). That argument assumes that subparagraph (B) is the only provision that may be employed to remedy an agency’s refusal to bargain, which seems a dubious proposition given the character of the statute’s remedial prescriptions. Under the National Labor Relations Act, for instance, an employer’s refusal to bargain is remedied under a provision similar to subsection (A), the general cease and desist authority. See 29 U.S.C. § 160(c). Subparagraph (B) apparently was designed not to circumscribe the FLRA’s remedial discretion, but to provide specific authority, not available to the NLRB, actually to fashion and order the terms of a collective bargaining agreement.³

But even were petitioner’s assumption correct — that Congress intended subpara-graph (B) of section 7118(a)(7) to serve as the FLRA’s authority to remedy refusals to bargain — petitioner’s argument ignores subparagraph (D), which explicitly empowers the FLRA to include in an order “any combination of actions described in subpar-agraphs (A) through (C) ... or such other actions as will carry out the purpose of this chapter.” This language quite clearly empowers the Authority to order the first part of (B) — the requirement to bargain — without the second part, its retroactive application (an RBO). In short, we see nothing in the language of the statute that restricts the Authority’s discretion to determine, in accordance with its EPA and AFGE standard, whether and when to direct RBOs as a remedy for an agency’s refusal to bargain.

Petitioner, we think it fair to say, relies more heavily on the argument that the policy of the Act would be frustrated if RBOs were not employed routinely to remedy refusals to bargain, an argument which, it asserts, finds at least some support in our cases. But petitioner’s general appeal to the policies of the Act encounters at the outset the difficulty that Congress quite directly entrusted the Authority, and not us, with the responsibility to “take any remedial action it considers appropriate to carry out the policies” of the Act. 5 U.S.C. § 7105(g)(3) (emphasis added). Recognizing that principle, we have said that “we will uphold the remedial orders of the FLRA ‘unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ ” Professional Air Traffic Controllers Org. v. Federal Labor Relations Auth. (“PATCO"), 685 F.2d 547, 585 (D.C.Cir.1982) (emphasis added) (quoting Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943)). That is a heavy burden indeed.

Still, petitioner contends that if an RBO is not employed in cases such as this, agencies will have insufficient incentive to bargain in good faith. A government agency will be tempted, the argument goes, to claim that an issue is non-negotiable because it will think that it will be able to delay bargaining at little cost. It is not apparent, however, that government agencies would be indifferent to the prospect of a determination that they violated the law or that their future bargaining should be conducted under the direction of the Authority’s order. In addition, petitioner’s argument ignores the unique structure of the federal sector labor relations statute, which, because of “the special requirements and needs of the Government,” 5 U.S.C. § 7101(b), excludes from negotiations a host of subjects that employers would be obliged to bargain about in the private sector. For instance, section 7106(a), the “management rights” provision of the statute, ensures that agencies need not bargain over the number of employees, their hiring, assignment, and discharge, the right to contract out work, and the authority “to take whatever actions may be necessary to carry out the agency mission during emergencies.” 5 U.S.C. § 7106(a); see also Department of Defense v. Federal Labor Relations Auth., 659 F.2d 1140, 1143 (D.C.Cir.1981) (stating that “[i]t is permissible to bargain over the ‘procedures’ by which those [section 7106] rights are exercised, but not over the substance of the rights themselves”), cert. denied, 455 U.S. , 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). Sections 7103(a)(14)(C). and 7117(a), moreover, indicate that the parties may not bargain over proposals that are inconsistent with either federal law or government-wide regulations. See 5 U.S.C. §§ 7103(a)(14)(C), 7117(a).

The Act necessarily assumes then that a number of disputes will arise as to whether a particular subject is bargainable or not, and therefore provides for an expeditious method whereby a union may test negotiability rather than charge an unfair labor practice under section 7118. When an agency alleges that it need not bargain with the union over an issue — typically a proposal the union has submitted for inclusion in the collective bargaining agreement — the union under section 7117(c) can directly and immediately raise before the FLRA the negotiability of the proposal under informal streamlined procedures. See 5 U.S.C. § 7117(c). This device reduces any incentive for an agency employer to refuse to bargain simply to gain delay. And as the Authority indicated in its EPA and AFGE decision, if any agency refuses to bargain after the Authority has determined a subject negotiable, the FLRA views an RBO as then appropriate.

This unique structure makes petitioner’s further recourse to the National Labor Relations Act for support seem misdirected. Under the NLRA, virtually all terms and conditions of employment are subject to negotiation. See 29 U.S.C. § 158(d). And there is therefore no counterpart to section 7117(c) of the Federal Service Labor-Management Relations Act. As we have only recently been reminded, although Congress looked to the NLRA when it drafted the FLRA, the differences are as significant as the similarities. See Fort Stewart Schools v. Federal Labor Relations Auth., — U.S. -, 110 S.Ct. 2043, 2047, 109 L.Ed.2d 659 (1990) (stating that the federal sector labor relations statute “contains no indication that it is to be read in pari materia” with the NLRA). But, in any event, we have never held that the NLRB is obliged to adopt a remedy similar to an RBO when fashioning a bargaining order. See, e.g., Amalgamated Clothing Workers v. NLRB, 736 F.2d 1559, 1570 (D.C.Cir.1984).

To be sure, where an agency has taken unilateral action that disturbs the status quo and has illegally refused to give a union an opportunity to bargain over the decision (or its impact), a stronger case can be made for the proposition that the Authority, as does the NLRB,⁴ should restore the status quo ante in a remedial order— that is, make the employees whole. See American Fed’n of Gov’t Employees v. Federal Labor Relations Auth. (“AFGE”), 785 F.2d 333 (D.C.Cir.1986). That does not necessarily mean that the Authority must employ such a remedy as a matter of law, but in such a case it would surely bear the burden of explaining why it did not choose to make the employees whole. But that situation is not present here; there is no claim, nor could there be, that the IRS illegally took away from employees a benefit which they previously enjoyed. The agency did not provide parking for the employees in Houston one day and take it away unilaterally the next.

Admittedly, certain language in a recent case of ours, see American Fed’n of Gov’t Employees, SSA Council 220 v. Federal Labor Relations Auth. (“SSA Council 220”), 840 F.2d 925 (D.C.Cir.1988), upon which petitioner relies, could be interpreted as mandating a certain degree or form of relief, which would be inconsistent with the deferential scope of review we previously stated in PATCO and reaffirm today. In SSA Council 220, we directed the FLRA to consider whether employees who could have been economically disadvantaged by an agency’s introduction of an employer evaluation plan should be made “whole.” Id. at 930. The agency had illegally refused to bargain over the impact and implementation of the plan, and the Authority had issued a prospective bargaining order. We remanded with instructions that the Authority focus on the qualification of the employees for a “full measure of monetary relief” and we suggested an RBO as a possible means to accomplish such relief. Id. Insofar as SSA Council 220 appeared to require more than a request for adequate explanation, we now reaffirm that any such direction or instruction would exceed the appropriate limits of judicial review of an agency’s choice of remedies.

******

We conclude the FLRA’s decision to issue a prospective bargaining order was well within its discretion, and we have no grounds to dispute its remedial choice. Accordingly, the union’s petition for review is

Denied.

1 . The parties bargained over a new employee grievance resolution procedure, an on-site health service, a credit union office, physical configuration and safety features of the workplace, assignment of offices, procedures for evaluating the new facility, and parking arrangements.

2 . The legislative history of section 7118 is skimpy. The House version of the legislation closely resembled the bill that ultimately passed, and the Conference Report on the final bill contained no analysis of what is now section 7118(a)(7). The House Committee Report is thus the most authoritative legislative history we possess. See American Jewish Congress v. Kreps, 574 F.2d 624, 629 n. 36 (D.C.Cir.1978); American Airlines v. Civil Aeronautics Bd., 365 F.2d 939, 948-49 (D.C.Cir.1966). In discussing what action the Authority should undertake in response to an unfair labor practice, the House Report contained the following passage:

The [Authority’s] order shall require the party to take such action to carry out the policies of chapter 71. The action ordered may include: ceasing and desisting from the unfair labor practice; directing retroactive amendment of a collective bargaining agreement; requiring an award of reasonable attorney’s fees and reasonable costs and expenses of litigation; or requiring reinstatement of employees with backpay and interest.

H.R.Rep. No. 1403, 95th Cong., 2d Sess. 53 (1978) (emphasis added).

3 . The Supreme Court has concluded that, under the NLRA, the NLRB cannot dictate the terms of a collective bargaining agreement. See H.K. Porter Co. v. NLRB, 397 U.S. 99, 106, 90 S.Ct. 821, 825, 25 L.Ed.2d 146 (1970); see also Professional Air Traffic Controllers Org. v. Federal Labor Relations Auth., 685 F.2d 547, 584 n. 79 (D.C.Cir.1982).

4 . In unilateral action cases, the NLRB has taken the view that it will ‘“order restoration of the status quo ante to the extent feasible, and in the absence of evidence showing that to- do so would impose an undue or unfair burden upon the respondent.’ ” NLRB v. Cauthorne, 691 F.2d 1023, 1025 (D.C.Cir.1982) (quoting Allied Prods. Corp., Richard Bros. Div., 218 N.L.R.B. 1246 (1975), enforced in part, 548 F.2d 644 (6th Cir.1977)).