American Federation of Government Employees, Afl-Cio (Afge), Council 147, Social Security Administration, Respondent-Intervenor v. Federal Labor Relations Authority
Docket: 98-70912
Court: Court of Appeals for the Ninth Circuit; March 2, 2000; Federal Appellate Court
The case involves the American Federation of Government Employees, AFL-CIO, Council 147 (the Union) petitioning for review of a decision by the Federal Labor Relations Authority (FLRA) regarding an alleged unfair labor practice by the Social Security Administration (the Agency). The Union argued that the Agency was obligated to bargain over staffing levels under section 7106(b)(1) of the Federal Service Labor-Management Relations Statute, claiming that Executive Order 12871, issued by the President, mandated such bargaining.
The Union's concerns arose when a claims representative, Steve Matich, sought a transfer within the district office. The Agency's district manager indicated that Matich's transfer would not involve any reciprocal moves, prompting the Union to request that no changes occur until an agreement was reached through bargaining. The Union cited section 7106(b)(1), which allows bargaining "at the election of the agency," asserting that the President’s Executive Order constituted this election for the Agency.
Executive Order 12871 aims to enhance labor-management partnerships within federal agencies and specifically instructs agency heads to negotiate over topics listed in section 7106(b)(1). Despite these arguments, the FLRA rejected the Union's claim, leading to the Union's petition for judicial review. The court affirmed the FLRA's decision and denied the petition, confirming that the Agency was not required to bargain over the staffing levels as contended by the Union.
Section 3 of the Order, titled "No Administrative or Judicial Review," clarifies that the Order is solely aimed at enhancing the internal management of the executive branch and does not grant any rights to administrative or judicial review enforceable by any party against the United States or its entities. Following a request from the Union to negotiate, the Agency reassigned an employee, Matich, without a replacement, and indicated it would negotiate the implementation and impact of this transfer, but not staffing levels. The Union subsequently filed an unfair labor practice charge, claiming the Agency unilaterally altered staffing levels without bargaining. Both the Administrative Law Judge (ALJ) and the Federal Labor Relations Authority (FLRA) dismissed this claim, asserting the Order did not equate to an election for bargaining purposes under section 7106(b).
In reviewing the case, deference is typically granted to an agency's interpretation of statutes or executive orders it administers, but since the FLRA was not tasked with administering the Order, its interpretation is subject to de novo review. The FLRA's interpretation is based on the language of the Order, which mandates agency heads to negotiate on specific subjects as outlined in 5 U.S.C. § 7106(b)(1). However, the Order does not indicate that the President has chosen to negotiate with labor unions; it merely directs agency heads to negotiate, which is a critical distinction noted in a related D.C. Circuit case. Thus, the FLRA concluded that the Order does not constitute an election to bargain.
The President's intent regarding Executive Order 12871 is clarified in section 3, which states that the Order aims to enhance internal executive branch management and does not create rights for administrative or judicial review. This suggests that the Order was not meant to serve as a legally enforceable election for government agencies. The Union contends that section 3 does not negate the possibility of the Order being recognized as an election under section 7106(b)(1) but acknowledges that it cannot enforce the Order itself. Instead, the Union seeks to enforce the bargaining provision tied to an election, using the Order as evidence of such an election. However, even if section 3 does allow for some enforcement under section 7106(b)(1), it still indicates that the Order was not intended to be legally enforceable as an election.
The Union cites guidance from the Office of Personnel Management (OPM) asserting that bargaining over subjects in section 7106(b)(1) is mandatory, suggesting that the Order must also be mandatory to have any effect. Nonetheless, the guidance does not assert that the Order constitutes an election, merely that compliance is expected. The President retains authority to discipline agency heads for non-compliance, which lends a mandatory quality to the Order without establishing it as an election to bargain.
Ultimately, the clarity of the Order's language and the lack of compelling justification from the Union lead to the conclusion that Executive Order 12871 does not represent an election to bargain, resulting in the denial of the Union's petition for review and a determination that no unfair labor practice occurred.
The excerpt highlights that there are no known 9th Circuit cases addressing an agency's interpretation of an executive order it is not responsible for administering. Previous cases indicate that the court defers to agency interpretations only when the agency is tasked with administering the order. Consequently, it is inferred that if an agency is not charged with such responsibility, the court will review the agency's interpretation de novo. The Union contends that the Federal Labor Relations Authority (FLRA) has historically interpreted negotiated language to establish an agency's election to bargain without requiring the explicit use of the term "elect." However, cited cases do not support this claim; instead, they illustrate that an agency's signing of a collective bargaining agreement on topics covered by section 7106(b)(1) implies an election to bargain over those topics. In this instance, since the Agency declined to negotiate on section 7106(b)(1) topics, its lack of agreement cannot be construed as an election to bargain.
