U.S. Immigration & Naturalization Service v. Federal Labor Relations Authority

4 F.3d 268
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 19, 1993
DocketNos. 92-1995, 92-2131
StatusPublished
Cited by2 cases

This text of 4 F.3d 268 (U.S. Immigration & Naturalization Service v. Federal Labor Relations Authority) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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U.S. Immigration & Naturalization Service v. Federal Labor Relations Authority, 4 F.3d 268 (4th Cir. 1993).

Opinions

OPINION

K.K. HALL, Circuit Judge:

The Immigration and Naturalization Service (INS) petitions for review1 of an order of the Federal Labor Relations Authority (FLRA) finding that certain terms of a collective bargaining agreement between INS and its employees are properly negotiable under the Federal Service Labor-Management Relations Statute (FSLMRS). FLRA cross-petitions for enforcement of the same order. We grant enforcement as to the agreement’s “official time” provisions, but deny enforcement as to the “sexual harassment” provision.

I.

Limited collective bargaining is available to federal employees under the FSLMRS, 5 U.S.C. § 7101 et seq. FLRA resolves disputes and claims of unfair labor practices under the statute, in a role “analogous to that of the National Labor Relations Board in the private sector.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 92-93, 104 S.Ct. 439, 442, 78 L.Ed.2d 195 (1983) [“BATF ”].

Under FSLMRS, federal agencies have a duty to negotiate in good faith over “conditions of employment.” However, a matter is not a negotiable condition of employment “to the extent [it is] specifically provided for by Federal statute.” 5 U.S.C. § 7103(a)(14)(C). Other limitations on the agency’s duty to bargain are scattered about the statute, the most notable of which is a management rights provision. See 5 U.S.C. § 7106(a).

When an agency reaches an agreement with the representative of its employees, it must submit the agreement to the “agency head” for approval. The agency head has thirty days to approve or disapprove the agreement. If the agency head does not act within those thirty days, the agreement goes into effect automatically. The agency head does not have arbitrary authority to disapprove an agreement simply because it would have preferred a different one. It “shall approve the agreement ... if [it] is in accordance with the provisions of this chapter and any other applicable law, rule, or regulation....” 5 U.S.C. § 7114(c)(2).

II.

On May 16, 1990, INS and the American Federation of Government Employees (AFGE) completed negotiations for a new collective bargaining agreement to cover INS’ employees represented by AFGE. The proposed agreement was submitted for review to the agency head — in this case, the Department of Justice (Justice). 5 U.S.C. § 7114(c). Justice disapproved several provisions in the proposed agreement, two categories of which are still in dispute here.

AFGE petitioned FLRA to review the disapproval under 5 U.S.C. § 7117(c). FLRA ruled that the provisions were negotiable and were therefore in accordance with law. The first requires INS to grant “official” (that is, paid) time for union representatives in “statutory appeals”2 and for preparation of unfair labor practice charges. The second states that, under certain circumstances, INS “may [271]*271be responsible” for acts of sexual harassment committed by its supervisors, “regardless of whether the specific acts complained of were know[n] or should have been known by-the employer.”

INS now petitions for review of the FLRA order. FLRA cross-petitions for enforcement. We must enforce an FLRA order unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 7123(c); Department of Health and Human Services v. FLRA 844 F.2d 1087, 1090 (4th Cir.1988) (en banc). FLRA’s decisions are entitled to special deference when they reflect policy choices, involve complex issues within FLRA’s special expertise, or constitute reasonable interpretations of FSLMRS.3 BATF, 464 U.S. at 97, 104 S.Ct. at 444; Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-843, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). We must keep in mind that, though it serves a quasi-judicial role between government agencies and their émployees, FLRA is a part of the executive branch, and, so long as it remains within the broad confines imposed upon it by its enabling statute, FLRA is entitled to formulate executive policy without interference from us.

On the other hand, the “deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” Accordingly, while reviewing courts should uphold reasonable and defensible constructions of an agency’s enabling Act, they must not “rubber-stamp ... administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” BATF, 464 U.S. at 97, 104 S.Ct. at 444 (citations omitted). Thus, treading softly but foregoing the rubber stamp, we turn to the issues before us.

III.

0Official Time)

Justice disapproved provisions in the proposed collective bargaining agreement that would grant “official” time, to employees when they (i) represent employees at statutory appeals proceedings or act as a technical advisor in hearings, or (ii) prepare an unfair labor practice charge.4

A.

“Official time” is the subject of a specific section of FSLMRS, 5 U.S.C. § 7131:

§ 7131. Official time
(a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.
(b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicita[272]*272tion of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a nonduty status.

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