Order

    The Supreme Court of the United States

Federal Labor Relations Authority

versus 86-1715

Arberdeen Proving Ground

JUN 16 1988

Petitions and Briefs

Labor Law Series

Volume 21, No.12 

1987/86 Term

Law Reprints



TABLE OF CONTENTS

Federal Labor Relations Authority

v. 86-1715

Aberdeen Proving Ground

Page

Petition for Writ of Certiorari........................1

Opposition............................................ 33

BRIEFS ON THE MERITS

Petitioner........................................... 53

Respondent......................................... 109

Reply Brief for the Petitioner...................... 161



N o. 86-1715

TJit the S u p r e m e  (Hiuirt o f ilje JMniteh S t a t e s
O cT o n E ii T e r m . 1986

F e d e r a l  L a b o r  R e l a t io n s  A u t h o r it y , 
P e t it io n e r

V.

A b e r d e e n  P r o v in g  G r o u n d . 
D e p a r t m e n t  o f  T h e  A rm y

p e t it io n  f o r  a w r it  o f  c e r t io r a r i
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

RUTH E. PETERS*
Soiicitor

WILLIAM E. PERSINA 
Deputy Solicitor

ARTHUR A. HOROWITZ 
Associate Solicitor

ROBERT J. ENGLEHART 
Attorney

Federal Labor Relations Authority 
500 C Street, SW.
Washington, D C. 20424 
<202) 382-0781

‘ Counsel of Record

1



Q U ESTIO N  PR E S E N T E D

W hether under T itle V II of the Civil Service Reform 
A ct of 1978, 5 U.S.C. 7101 et seq., the  Federal Labor 
R elations A uthority  is empowered to  resolve, in an u n ­
fair labor practice proceeding involving allegations of 
a failure to  bargain  over changes in employee working 
conditions, the employer agency’s defense th a t a “ com­
pelling need’’ ex ists  for an agency regulation so as to 
bar negotiations over proposals inconsisten t w ith the 
regulation, ju s t as the A uthority  indisputably  can 
resolve in an unfair labor practice proceeding other 
em ployer defenses to  the bargain ing  obligation.

2



TA B LE OF CO NTEN TS

Pago
Opinions B elow ............................................................  1
Ju risd ic tio n ................................................................... 2
S ta tu tes  Involved ...............................................................  2
S ta te m e n t .....................................................................  2
Reasons For G ranting The Petition .............................  12
Conclusion.....................................................................  25
Appendix A ..........................................................................  la
Appendix B ............................................................................. 16a
Appendix C ............................................................................. 17a
Appendix D ..........................................................................  18a
Appendix E ............................................................................. 52a
Appendix F ............................................................................  70a

TA B LE O F A U T H O R IT IE S

Cases:
AFGE, Local 1928 and Naval Air Development

Center, Warminster, Pennsylvania, 2F.L.R.A. 451 15
Association of Civilian Technicians, Montana Air

Chapter v. FIJI A, 756 F.2d 1 7 2 .................. 14
Bureau of Alcohol, Tobacco and Firearms v. FLRA,

464 U.S. 8 9 ...........................................................2 ,3 ,13 ,19
Chevron v. National Resources Defense Council,

467 U.S. 8 3 7 ........................................................  8 ,1 9
Decision on Petition for Amendment of Rules, 23 

F.L.R.A. (No. 57) 405 (Sept. 23, 1986), petition for 
review filed sub nom., National Labor Relations 
Board Union, et al. v. FLRA, No. 86-1624 (D C.
C ir .) ........................................................................  24

Defense Logistics Agency, 12 F.L.R.A. 412 . 7
Defense Logistics Agency  v. FLRA, 754 F.2d 1003 passim
Department of Defense v. FLRA, 659 F.2d 1140, cert.

denied, 455 U.S. 945 .................................................  24
Department of the Air Force, Scott Air Force Base,

Illinois, 5 F.L.R.A. 9 ........................................  5

(III)

3



IV

Cases:—Continued f age
FLRA  v. Social S ecu rity  A dm in is tra t ion ,

753 F.2d 156 ..............................................................  4,5,13,16
FLRA v. United States Department of the Air Force,

Tinker A ir Force Base, 735 F.2d 1 5 1 3 ................ 5,13,16
Garner v. Teamsters Local Union No. 776, 346 U.S.

4 85 ...................................................................................  25
Internal Revenue Service, Western Region, San

Francisco, California, 11 F.L.R.A. 655 ................ 5
N A G E  Local R 14-62 and U.S. Army Dugway Prov­

ing Ground, Dugway, Utah, 26 F.L.R.A. No. 7
(Mar. 6 1 9 8 6 )............................................................... 15

NLRB  v. Katz, 369 U.S. 736 ......................................  5,13,16
United States Army Engineer Center, Fort Belvoir

v. FLRA, 762 F.2d 4 09 ............................................. passim
Veterans Administration West Los Angeles Medical 

Center, Los Angeles, California, 24 F.L.R.A. No.
73 (Dec. 22, 1986) ...................................................... 5

S ta tu tes, rules, and regulations:
The Federal Service Labor M anagement Relations 

S ta tu te , as amended, 5 U.S.C. 7101-7135 (1982 &
Supp. I l l  1 9 8 5 )..........................................................  2

5 ll.S.C. 7103(a)( 12)...............................................  3
5 U.S.C. 7 103(a)( 14)...............................................  3
5 U.S.C. 7105(a)(1).................................................  2,3
5 U.S.C. 7105(a)(2).................................................  2
5 U.S.C. 7105(a)(2)(I) ............................................. 3
5 U.S.C. 7106 ..........................................................  3,16
5 U.S.C. 7106(a)...................................................... 14
5 U.S.C. 7114(b)(2).................................................  3
5 U.S.C. 7114(b)(5).................................................  3
5 U.S.C. 7116(a)(1).................................................  H
5 U.S.C. 7 1 16(a)(5).................................................  4,11
5 U.S.C. 7116(a)(7).................................................  14
5 U.S.C. 7117 ..........................................................  4,9,15
5 U.S.C. 7117(a)...................................................... 14
5 U.S.C. 7117(a)(1).................................................  3,4,13
5 U.S.C. 7117(a)(2).................................................  passim
5 U.S.C. 7117(a)(3).................................................  4,14
5 U.S.C. 7117(b)...................................................... passim

4



V

S ta tu tes, rules, and regulations:—Continued Page
5 IJ.S.C. 7117(b)(1) ............................................  4,15
5 U.S.C. 7117(b)(2)(A).......................................  21
5 U.S.C. 7117(h)(2)(B).......................................  14
5 U.S.C. 7117(c)................................................... 21
5 U.S.C. 7117(c)(5)..............................................  21
5 U.S.C. 7117(c)(6).......................................   21
5 U.S.C. 7118(a)................................................... 9
5 U.S.C. 7128(a)................................    3
5 U.S.C. 7123(h) ................................................  3
5 U.S.C. 7134.......................................................  3

Civil Service Reform Act of 1978, Puh. L. No.
95-454, § 701; 92 S tat. 1111.................................. 2

Pub. L. No. 95-454, § 907; 92 S ta t. 1227 ___  22
Executive Order No. 10988, 3 C.F.R. 521 (1959-1963

co m p .)..........................................................................  2
Executive Order No. 11491, 3 C.F.R. 861 (1966-1970

co m p .)..........................................................................  2
Executive Order No. 11491, as amended, 3 C.F.R.

957 (1971-1975 com p.).............................................  17,22,23
Executive Order Nos. 11616, 11636, and 11838,

C.F.R. 605, 634, 957 (1971-1975 c o m p .) ........... 2
Executive Order No. 12107, 3 C.F.R. 264 (1979) 22
Reorganization Plan No. 2 of 1978 ......................... 22,23
5 C.F.R. 2411.21-28 ..................................................... 20
5 C.F.R. 2411.22(b)....................................................  20,21
5 C.F.R. 2411.25(h)(2)................................................  20
5 C.F.R. 2423.5 ...........................................................  5,7,10,18
5 C.F.R. P art 2424 ..................................................... 4,15
5 C.F.R. 2424.5 ...........................................................  passim
5 C.F.R. 2424.11 .........................................................  4,11,14,15
45 Fed. Reg. 3485 (1980) ........................................... 4,14,22

Miscellaneous:
1975 “ Report and Recommendations of the Federal 

Labor Relations Council on the Amendment of 
Executive Order 11491, as Am ended’’ reprinted 
in Subcomm. on Postal Personnel and Moderniza­
tion of the House Comm, on Post Office and Civil 
Service, 96th Cong., 1st Sess., Legislative 
H is to ry  o f  the Federal Service  Labor- 
Management Relations Statute, Title VII of the 
Civil Service Reform A ct of 1978 (Comm. Print 
1979)............................................................................  passim

5



VI

M iscellaneous:—Continued Page
H. Doc. 95-341, 95th Cong., 2d Sess. (1978)...........  22
H R. Rep. 95-1396, 95th Cong., 2d Sess. (1978). . . 22
H R. Rep. 95-1717, 95th Cong., 2d Sess. (1978). . 19
S. Rep. 95-969, 95th Cong., 2d Sess. (1978)...........  16
124 Cong. Rec. 29199 (1978)........................................  15

6



Ju %  j^upmue (Eourt of life Jfniteh States
OCTOBER TER M , 1986

No.

FE D E R A L  LABOR R ELA TIO N S AUTH O RITY , 
P E T IT IO N E R  

v.
A B E R D E E N  PROVING GROUND, 

D E P A R T M E N T  OF T H E  ARMY

P E T IT IO N  FOR A W R IT  O F C ER TIO R A R I TO 
T H E  U N ITED  STA TES COURT OF A PPEA LS FOR 

T H E  FO U R TH  C IR C U IT

The Federal Labor Relations A uthority  petitions for 
a w rit of certiorari to review the judgm ent of the United 
S ta tes  C ourt of A ppeals for the F ourth  Circuit.

O PIN IO N S BELOW

The judgm ent of the court of appeals (App. 16a), sum ­
m arily reversing the decision of the A uthority , is 
unreported. The court’s earlier denial of the A uthority’s 
petition  for hearing en banc (App. 17a) is unreported. 
The previous decision of the court of appeals (App. 
52a-69a) involving the sam e question, and upon which 
the cou rt’s sum m ary reversal was based, is reported a t 
762 F.2d 409; the co u rt’s denial of the petition for 
rehearing, in th a t case, w ith suggestion for rehearing 
en banc (App. 70a) is unreported. The decision and order 
of the Federal Labor Relations A uthority (App. 18a-51a) 
is reported  a t 21 F.L .R.A . No. 100.

0 )

7



2

JU R IS D IC T IO N

The ju dgm en t of the court of appeals was entered on 
Jan u a ry  28, 1987. The ju risd iction  of th is  C ourt is in­
voked under 28 U.S.C. 1254(1).

ST A TU TE S INVOLVED

The relevan t portions of the Federal Service Labor- 
M anagem ent R elations S ta tu te , as amended, 5 U.S.C. 
7101-7135 (1982 & Supp. I l l  1985) are reproduced in 
the  appendix (App. la-6a).

ST A TEM EN T

1. The Federal Service Labor-M anagem ent Relations 
S ta tu te  (“ the S ta tu te” ) governs labor-management rela­
tions in the federal service.1 U nder the S ta tu te , the 
responsibilities of the Federal Labor Relations A uthor­
ity  (“ the A u th o rity ” ) include adjudicating unfair labor 
practice com plaints, negotiability disputes, bargaining 
u n it and represen tational election m atte rs , and resolv­
ing exceptions to a rb itra tion  aw ards. See 5 U.S.C. 
7105(a)(1),(2); see also Bureau o f Alcohol, Tobacco and  
Firearms v. F L R A , 464 U.S. 89, 93 (1983). The A uthor­
ity  m ay also “ take such o ther actions as are necessary *

lrI'he S ta tu te  was enacted as section 701 of the Civil Service 
Reform Act of 1978, Pub. L. No. 95-454, 92 S tat. 1111 (1978). Prior 
to the enactm ent of the S ta tu te , labor-management relations in 
the federal service were governed by a program established in 1962 
by Executive Order No. 10988, 3 C.F.R. 521 (1959-1963 comp.). 
The Executive Order program was revised and continued by Exec. 
Order No. 11491, 3 C.F.R. 861 (1966-1970 comp.), as amended by 
Exec. Orders Nos. 11616, 11636, and 11838, 3 C.F.R. 605, 634, 
957 (1971-1975 comp.).

8



3

and appropriate to effectively adm inister the provisions 
of [the S ta tu te ].” 5 U.S.C. 7105(a)(2)(f). The A uthority  
is also empowered to engage in formal rulem aking pur­
su an t to  5 U.S.C. 7134, and to “ provide leadership in 
estab lish ing  policies and guidance” re la ting  to  federal 
sector labor relations m atte rs , p u rsu an t to 5 U.S.C. 
7105(a)(1). B A T F v . F L R A , supra, 464 U.S. a t 93. The 
A uthority  m ay petition  for enforcem ent of its  orders 
in appropriate United S ta tes  courts of appeals. 5 U.S.C. 
7123(b). Persons, including federal agencies, who are ag­
grieved by certain  types of A u thority  orders m ay seek 
judicial review in the courts of appeals. 5 U.S.C. 7123(a).

a. U nder the S ta tu te , a federal agency m ust bargain 
in good faith  w ith the exclusive representative of an ap­
propriate  bargain ing  u n it about u n it em ployees’ con­
ditions of em ploym ent and, upon the request of either 
party , execute a docum ent em bodying the agreed upon 
term s. 5 U.S.C. 7103(a)(12), 7114(b)(2), 7114(b)(5). The 
S ta tu te  defines “ conditions of em ploym ent” as “ per­
sonnel policies, p rac tices and m a tte rs , w hether 
established by rule, regulation, or otherw ise, affecting 
working conditions * * * .” 5 U.S.C. 7103(a)(14). 
However, the S ta tu te  also expressly excludes certain  
m atte rs  from the general obligation to  bargain. There 
is no du ty  to  bargain  over the rig h ts  the S ta tu te  
reserves to m anagem ent as nonnegotiable. 5 U.S.C. 
7106. Further, there is no duty  to bargain over proposed 
con tract language which would bring about an incon­
sistency w ith a federal law, or w ith a governm ent-wide 
rule or regulation. 5 U.S.C. 7117(a)(1).

As is re levant to th is case, there is also no du ty  to 
bargain  over proposed con trac t language which would 
bring about an inconsistency w ith e ither an agency 
regulation or a regulation of an agency’s prim ary na­
tional subdivision whenever the A uthority  determ ines,

9



4

under the criteria  set forth  in 5 C.F.R. 2424.11, th a t a 
compelling need ex ists  for the  regulation. 5 U.S.C. 
7117(a)(2), (a)(3). The employer agency which issued the 
regulation bears the burden of dem onstrating  to the 
A uthority  th a t the regulation in question satisfies one 
of the three criteria  set ou t in the A u tho rity ’s regula­
tions for establishing compelling need. See 45 Fed. Reg. 
3485 (1980).

b. Section 7117(b)(1) of the S ta tu te  empowers the 
A uthority  to  resolve compelling need issues where, 
during the course of collective bargaining, “ an exclusive 
rep resen ta tive  alleges th a t no compelling need exists 
for any rule or regulation * * * which is then in effect 
and which governs any m atte r a t issue in such collec­
tive bargain ing .” 5 U.S.C. 7117(b)(1). The A u th o rity ’s 
regulations im plem enting th is provision require th a t 
when an agency refuses to  bargain  over a proposal 
during  ongoing collective bargaining negotiations 
because the proposal is alleged to be inconsisten t w ith 
an existing agency-wide regulation for which a compel­
ling need exists, and no actual or contem plated changes 
in conditions of em ploym ent are involved, the compel­
ling need issue is resolved th rough the procedures in 
section 7117 of the S ta tu te  and P art 2424 of the A uthor­
ity ’s regulations. 5 C.F.R. 2424.5 (App. 10a).

However, a different situation  is presented where 
alleged unilateral changes in conditions of employm ent 
are involved. Section 7116(a)(5) makes it an unfair labor 
practice for an agency “ to refuse to consult or negotiate 
in good faith  w ith a labor organization as required by 
the [S tatu te].” 5 U.S.C. 7116(a)(5). As is relevant to this 
case, the bargaining obligation is specifically triggered 
whenever m anagem ent seeks to initiate a change in con­
ditions of em ploym ent of u n it employees. See, e.g., 
F L R A  v. Social Security  Adm inistration, 753 F.2d 156

10



5

(D.C. Cir. 1985); cf. N L R B  v. K atz, 369 U.S. 736 (1962) 
(under the N ational Labor R elations Act). In th is con­
nection, the A uthority  has consisten tly  held th a t an 
agency violates the obligation to  bargain  when it 
unilaterally in s titu tes  a change in conditions of employ­
m ent w ithou t notification to  or bargaining w ith the 
em ployees' exclusive bargain ing  representative. See 
F L R A  v. U nited S ta te s  D epartm ent o f the A ir  Force, 
Tinker A ir  Force Base, 735 F.2d 1513, 1515 n.5 (D.C. 
Cir. 1984). See also, e.g., Veterans A dm inistra tion  W est 
Los A ngeles M edical Center, Los Angeles, California, 
24 F.L .R.A . No. 73 (1986); In ternal Revenue Service, 
Western Region, San Francisco, California, 11 F.L.R.A. 
655 (1983); D epartm ent o f the A ir  Force, Sco tt A ir  Force 
Base, Illinois, 5 F.L.R.A . 9 (1981).

To resolve d isputes involving an employing agency’s 
alleged unilateral changes in conditions of employment, 
where issues of nego tiab ility—including, as in the in­
s ta n t case, assertions of com pelling need for agency 
regu la tions—are raised as affirm ative defenses, the 
A uthority  has prom ulgated specific procedures. These 
procedures recognize a union’s rig h t either: (1) to seek 
reso lu tion  of the  en tire  d isp u te , includ ing  the  
negotiability  issues, in the unfair labor practice forum; 
or (2) to  seek initial and separa te  resolution of the 
negotiability  issues in the negotiability  appeal forum. 
5 C.F.R. 2423.5 and 2424.5 (App. 6a-7a, 10a).

2. On Septem ber 15, 1981, Aberdeen Proving Ground 
(“ A berdeen” or “ the agency” ) m et w ith  the In te rn a ­
tional A ssociation of M achin ists and Aerospace 
W orkers, Local Lodge 2424, AFL-CIO (“ the union” ) and 
inform ed the  union of its  decision to  curta il operations 
of Aberdeen on the  day afte r Thanksgiving, and th a t 
employees would be placed on “ forced annual leave” 
for th a t  day (App. 19a). The union sought to  negotiate

11



6

concerning the im pact of A berdeen’s decision to cur­
tail its  operations and to  negotiate  the procedures 
leading to  its  im plem entation (App. 19a). D uring 
negotia tions held in October, the  union presented, 
am ong o ther th ings, two proposals to  g ran t ad­
m in istra tive  leave to all em ployees during  the closure 
of A berdeen’s operations, ra th e r than, as decided by 
Aberdeen, to place employees on forced annual leave 
(App. 19a).

A berdeen refused to  bargain  on these proposals, 
s ta tin g  th a t D epartm en t of Defense (Defense) and 
D epartm ent of the Arm y (Army) regulations precluded 
a g ran t of adm in istra tive  leave for an anticipated  
closure of operations (App. 19a).2 The negotiation ses­
sions ended, and a t no tim e prior to  the  closing did 
Aberdeen rescind its refusal to bargain over the union’s 
proposals (App. 19a).

The A u th o rity ’s General Counsel issued an unfair 
labor practice com plaint alleging th a t  A berdeen’s 
refusal to  nego tia te  over the union’s adm in istra tive 
leave proposals was a failure to negotiate  in good faith 
w ith the union in violation of the  S ta tu te  (App. 34a). 
The com plaint was heard  before an A uthority  A d­
m in istra tive  Law Jud g e  (ALJ) who concluded in his 
recom m ended decision and order th a t, am ong other 
th ings, Aberdeen had no d u ty  to  bargain  over the 
un ion’s proposal regard ing  the  g ran tin g  of ad­
m in istra tive  leave because the  A uthority  had not 
previously determ ined th a t  there was no compelling 
need for the agency regulations w ith which the union’s 
proposals were inconsisten t (App. 45a).

2These regulations are referred to as "agency” regulations, 
although the Army regulation (as opposed to a D epartm ent of 
Defense regulation) is a regulation of a “prim ary national subdivi­
sion.” See 5 U.S.C. 7117(a)(2).

12



7

3.a. A fter issuance of the  A L J’s recommended deci­
sion, b u t prior to the  A u th o rity ’s decision in th is case, 
the A uthority  in Defense Logistics Agency, 12 F.L.R.A. 
412 (1983) had its  first occasion to examine the conten­
tion th a t the  issue of a compelling need for an agency 
regulation could never be resolved in an unfair labor 
practice proceeding. In  th a t  case the  A uthority  noted 
th a t it had issued regulations (5 C.F.R. 2423.5 and
2424.5) which concern the A u th o rity ’s s ta tu to ry  
a u th o rity  to  reso lve d isp u te s  involv ing  alleged 
unilateral changes in conditions of em ploym ent where 
issues of negotiability are also raised. Defense Logistics 
A gency, 12 F.L .R.A . a t 415. The A uthority  noted th a t 
in such cases the A uthority’s regulations allow the labor 
organization to  seek resolution of the  negotiability  
issues by filing both an unfair labor practice charge and 
a negotiability  appeal, b u t th a t  the regulations also re­
quire the labor organization to select the forum in which 
to proceed first. Ibid. As applied to  the dispute a t hand, 
the A u tho rity  s ta ted  th a t if the union has selected the 
unfair labor practice forum in which to  proceed, and if 
the negotiability  issue in the  case involves an agency 
assertion  th a t  a com pelling need ex ists  for the agency 
regulation, then the com pelling need issue m ust per­
force be decided in the unfair labor practice proceeding. 
D efense Logistics Agency, 12 F.L .R.A . a t 416.

b. The D.C. C ircuit enforced th is  decision of the 
A uthority  in D efense Logistics A g en cy  v. F L R A , 754 
F.2d 1003 (D.C. Cir. 1985). The court exam ined the 
language and legislative h isto ry  of the S ta tu te , b u t did 
not find th a t they conclusively resolved the dispute over 
w hether the A uthority  was empowered to  resolve com­
pelling need negotiability issues in unilateral change un­
fair labor practice cases where the compelling need issue 
arises as p a rt of an agency 's affirm ative defense.

13



8

754 F.2d a t 1007-1008, The court then  exam ined the 
Executive O rder practice which predated  the  S ta tu te . 
754 F.2d a t 1008-1011. The court noted th a t under the 
Executive O rder, the  A ss is tan t Secretary  of Labor for 
Labor-M anagem ent Relations (the office which had the 
responsibility of resolving unilateral change unfair labor 
practice cases in the  federal sector) was authorized to 
resolve any negotiability issues necessary to the resolu­
tion of such a case w ithou t first referring the  negotia­
bility issues to the Federal Labor Relations Council. 754 
F.2d a t 1009-1011. The court noted th a t  th is jurisd ic­
tion of the A ss is tan t S ecretary  to  decide negotiability  
issues in un ila teral change unfair labor practice cases 
was an exception to  the general requirem ent th a t 
negotiab ility  appeals were to be filed directly w ith the 
Council. 754 F.2d a t 1010-1011. The court concluded 
th a t, while no t compelled, it  was m ore natura l, in ap­
plying this practice to the resolution of compelling need 
issues, to  read “ negotiab ility” as m eaning all aspects 
of negotiability, including compelling need. 754 F.2d a t 
1011.

The D.C. C ircuit found fu rther th a t  the reason­
ableness of the A u tho rity ’s construction of the S ta tu te  
was additionally  supported  by the fact th a t it  s tream ­
lined and shortened the d ispute resolution process. 754 
F.2d a t 1011. Further, the court found th a t the A uthori­
ty ’s construction  provided a forum in which a remedy 
for the refusal to bargain in unilateral change cases can 
be fashioned if no compelling need is found for the 
regulation. Ibid. Accordingly, no ting  the s tandard  in 
Chevron v. N ational Resources D efense Council, 467 
U.S. 837, 843 (1984), for judicial review of an agency 
construction  of its  enabling act once it has been de ter­
mined th a t Congress did not directly address the precise 
question of s ta tu to ry  construction  a t issue, the court 
concluded the  A u th o rity ’s construction  was “ not

14



9

only a perm issible reading of the S ta tu te , b u t also a 
reasonable one, in the  tru e s t sense — namely, th a t the 
A uthority  had good reasons for reading the S ta tu te  in 
th a t w ay.” 754 F.2d a t 1014.

4. The propriety  of the  A u th o rity ’s resolution of a 
compelling need issue as p a rt of a unilateral change un­
fair labor practice case was next reviewed in the Fourth  
C ircuit in United S ta te s  A rm y  Engineer Center, Fort 
Belvoir  v. F L R A , 762 F.2d 409 (4th Cir. 1985) (Fort 
Beluoir) (App. 52a-69a). The F ourth  C ircuit disagreed 
w ith the  A uthority  and the D.C. Circuit. The court 
found, principally, th a t  the A u th o rity ’s construction 
was a t variance w ith the ‘‘plain language” of Section 
7117 which s ta tes , in part, th a t  the d u ty  to  bargain 
ex tends to  an agency rule or regulation “only i f  the 
A uthority  has determ ined under subsection (b) o f this 
sec tion” th a t  no compelling need ex ists for the rule or 
regulation (App. 60a) (em phasis in original). The court 
s ta ted  these words in the S ta tu te  ‘‘are those of condi­
tion p recedent” and th a t it “ is clear th a t  any du ty  to 
bargain  on the  em ployer’s p a rt arises only after the 
FLRA ‘has determ ined’ th a t  no compelling need for the 
d isputed  regulation ex is ts” (App. 61a) (em phasis in 
original). The court concluded th a t “{i]t is illogical, in 
ligh t of th is  language, to m aintain  th a t a union could 
charge an agency w ith  ‘having engaged in or engaging 
in an unfair labor practice,’ 5 U.S.C. § 7118(a), because 
the em ployer has refused to  bargain  over subject m a t­
te r as to  which no du ty  to bargain  has been determ ined  
to ex is t” (App. 61a) (em phasis in original).

The A uthority  petitioned for rehearing of the court’s 
decision, w ith suggestion for rehearing en banc. The 
court denied bo th  on Ju ly  26, 1985 (App. 70a).

5. a. Given the conflict between the D.C. and the 
Fourth  Circuits, when the A uthority  issued its  decision 
in the in s tan t case (App. 18a-32a), it reexam ined the

15



10

propriety of the A uthority ’s resolving an agency’s com­
pelling need defense as p a r t of a un ilateral change un ­
fair labor practice case. The A u tho rity  considered the 
consistency of its  prior holdings w ith the term s of the 
S ta tu te  and w ith the A u th o rity ’s own regulations (5 
C.F.R. 2423.5 and 2424.5) (App. 21a-24a). The A uthority 
com pared its  resolution of the com pelling need issues 
in such an unfair labor practice case w ith its  practice 
of resolving in un ilateral change unfair labor practice 
cases all the other various defenses of nonnegotiahility,
i.e., defenses involving the o ther bases set ou t in the 
S ta tu te  for rendering m a tte rs  nonnegotiable (App. 
23a-24a). The A uthority  considered its  practice in light 
of the  legislative h isto ry  of the  S ta tu te  and in ligh t of 
the  experience under the Executive O rder and found 
sup p o rt for the continuation of the A u th o rity ’s prac­
tice (App. 24a-25a). The A u tho rity  weighed considera­
tions of public policy and found th a t, in those cases 
where no compelling need is found to  exist, the A uthor­
i ty ’s practice  prom otes the  collective bargain ing  pro­
cess by resolving all re levan t issues in one proceeding 
(thereby obviating  the delay inherent in two separate  
and consecutive proceedings) and it affords the  union 
access to  a rem edy for the agency’s failure to bargain  
(App. 25a-26a). M oreover, the A uthority  noted th a t its  
practice  fully preserves an agency’s rig h t no t to 
nego tia te  in those cases where the agency’s assertion 
of a com pelling need is upheld (App. 25a-26a). As a 
resu lt of th is  reexam ination, the  A u tho rity  reaffirm ed 
its  conclusion th a t the A u th o rity  can properly resolve 
the  m erits of an agency’s com pelling need defense for 
an agency regulation in a unilateral change unfair labor 
practice case (App. 26a).

b. In  connection w ith the particu lar compelling need 
issue involved in the  in s ta n t case, the  A uthority  con­
cluded th a t A berdeen had failed to susta in  its  burden

16



11

of establishing, in accordance w ith the A u th o rity ’s 
criteria  in 5 C.F.R. 2424.11, a com pelling need for the 
Defense and A rm y regulations (App. 27a). The A uthor­
ity  noted th a t  Aberdeen had argued th a t there was a 
com pelling need for the  regulations because they were 
essential to  m eet its  objective in curtailing  operations, 
which was to conserve energy (App. 27a). However, the 
A uthority  found th a t  A berdeen had failed to  estab lish  
how the g ran ting  of adm inistrative, ra ther than annual, 
leave in any way affected A berdeen’s s ta ted  objective 
of conserving energy (App. 27a). The A uthority  noted 
th a t A berdeen’s operations would be curtailed  to  the 
sam e extent, and energy conserved to  the sam e extent, 
w hether the  em ployees affected were on annual leave 
or adm in istra tive  leave on the  day in question (App. 
27a).

Accordingly, the A uthority  concluded th a t Aberdeen 
violated Section 7116(a)(1) and (5) of the S ta tu te  when 
it refused to  bargain  concerning the union’s proposal 
to  g ran t em ployees adm in istra tive  leave on the day 
after Thanksgiving, subm itted  in response to Aber­
deen’s notice th a t operations would be curtailed on th a t 
da te  (App. 28a). A m ong o ther th ings, the  A uthority  
ordered A berdeen to  bargain  concerning the  union’s 
proposal to  g ran t adm in istra tive  leave in lieu of forced 
annual leave for Novem ber 27, 1981 (App. 29a).

c. A berdeen petitioned for review of the A u th o rity ’s 
decision in the F ourth  Circuit. The court, after full brief­
ing by the  parties, which included a m otion by the 
A u th o rity  th a t  the court hear the case en banc, denied 
the A u th o rity ’s m otion th a t  the case be heard en banc 
(App. 17a). Subsequently , Aberdeen moved the court 
to  reverse sum m arily the  A u th o rity ’s decision because 
i t  was in conflict w ith  the  co u rt’s earlier decision in

17



12

Fort Belvoir. On Jan u a ry  28, 1987, the F ourth  C ircuit 
granted Aberdeen’s motion and summarily reversed the 
A u th o rity ’s decision “ on the au tho rity  of U.S. A rm y  
Engineer Ctr., Fort Belvoir v. F L R A , 762 F.2d 409 (4th 
Cir. 1985)’’ (App. 16a).3

R EA SO N S FO R G R A N TIN G  T H E  P E T IT IO N

The decision of the  court of appeals concludes—in 
d irect conflict w ith the  D.C. C ircuit’s decision in 
D efense Logistics A g en cy  v. F L R A , 754 F.2d 1003 
(D.C. Cir. 1985)—th a t the S ta tu te  prohibits the A uthor­
ity  from resolving, in a unilateral change unfair labor 
practice case, an employer agency defense of its refusal 
to  bargain  by asserting  th a t  bargain ing  is barred  by 
an agency regulation for which a compelling need ex­
ists. The court’s conclusion is in m arked con trast to the 
trea tm en t of o ther em ployer defenses, which in­
d ispu tab ly  can be resolved in a un ilateral change un­
fair labor practice case. The court goes even further, 
however, and concludes th a t an agency’s simple asser­
tion of the  com pelling need defense in a unilateral 
change unfair labor practice case postpones the du ty  
to  bargain  from arising un til the  A uthority , in a 
separate  negotiability proceeding, concludes there is no 
com pelling need for the agency regulation.

This in terp re ta tion  of the S ta tu te  by the court below 
d isregards one of the  m ost basic ten ets  in both  federal 
sector and p rivate sector labor law—th a t an employer’s 
decision to  change working conditions triggers a 
bargain ing  obligation, and th a t if it subsequently  can 
be shown th a t  the  em ployer refused to  bargain  over

3Given the court’s exclusive reliance on its  earlier decision in 
Fort Belvoir, the ensuing discussion of, and the references to, the 
court’s decision below will be a discussion of the court’s decision 
in Fort Belvoir.

18



13

m atte rs  which were properly w ithin th a t bargaining 
obligation, an unfair labor practice has been committed. 
See, e.g., N L R B  v. K atz, 369 U.S. 736 (1962) (private 
sector); F L R A  v. Social Security  A dm inistra tion , 753 
F. 2d 156 (D.C. Cir. 1985); F L R A  v. U nited S ta tes  
D epartm ent o f  the A ir  Force, l in k e r  A ir  Force Base, 
735 F.2d 1513 (D.C. Cir. 1984) (federal sector). 
M oreover, the co u rt’s resu lt is a t odds w ith the A u­
th o rity ’s construction  of its  own enabling act, a 
construction which continues the  practice th a t existed 
under the prior E xecutive O rder program .

As th is C ourt s ta ted  in Bureau o f Alcohol, Tobacco 
and Firearms y . F L R A , 464 U.S. 89, 107 (1983): “ In 
passing the C i\m ^eform  Act, Congress unquestionably 
intended to s tren g th en  the  position of federal unions 
and to m ake the  collective-bargaining process a more 
effective in s trum en t of the public in te re st than  it had 
been under the E xecutive O rder regim e.’’ I t  is incor­
rect to conclude, as the  court did below, th a t Congress 
intended th a t an agency assertion  of compelling need 
for an agency regulation, and a m eritless one a t th a t, 
should be allowed to d isru p t the  bargain ing  obligation 
in unilateral change cases when Congress also intended 
th a t agency regulations be one of the S ta tu te ’s least 
restric tive  bars to  bargaining. Review by th is C ourt is 
plainly w arranted.

l.a . U nder the S ta tu te , no t all agency regulations 
are a bar to  bargaining, unlike governm ent-wide reg- 
ulationSjfor examplejwhich are. 5 U.S.C. 7117(a)(1), (2). 
Only those agency regulations which m eet the cri­
teria  for com pelling need, criteria  which Congress 
has authorized the A uthority  to  prescribe and to 
apply, can co n stitu te  a bar to  bargaining. 5 U.S.C.

19



14

7117(a)(2),(a)(3).4 5 Further, the employing agency carries 
the burden of dem onstrating  such a compelling need 
to  the A uthority . See 45 Fed. Reg. 3485 (1980). 
M oreover, the  S ta tu te  also specifies th ree  c ir­
cum stances where even a regulation for which there 
m ay be a com pelling need does no t act as a bar to col­
lective bargaining.^ As a result, agency regulations are

4 For discussion of a similar bar for agency regulations which 
met a compelling need tes t under the preexisting Executive Order 
program , see 1975 “ Report and Recommendations of the Federal 
Labor Relations Council on the Am endm ent of Executive Order 
11491, as Amended” (1975 Council Report) a t 37-40, reprinted in 
Subcomm. on Postal Personnel and M odernization of the House 
Comm, on Post Office and Civil Service, 96th Cong., 1st Sess., 
Legislative History of the Federal Service LaborManagement 
Relations Statute, I ltle  VII of the Civil Service Reform Act of 
1978, a t 1304-1311 (Comm. P rin t No. 96-7) (Legis. Hist.). Copies 
of the 1975 Council Report have been lodged with the Clerk of the 
Court.

5 First, if a collective bargaining agreem ent has a provision 
with which such a regulation conflicts, it is an unfair labor prac­
tice for an agency to enforce either a government-wide or an 
agency regulation if the agreem ent was in effect before the date 
the regulation was prescribed. 5 U.S.C. 7116(a)(7). Second, even 
if a compelling need could be found for an agency regulation under 
the A uthority’s criteria in 5 C.F.R. 2424.11, the A uthority is in­
structed  not to find a compelling need if the agency which issued 
the regulation informs the A uthority  th a t a compelling need for 
the regulation does not exist. 5 U.S.C. 7117(b)(2)(B). (This is in con­
tra s t to  several of the other bars to bargaining which agency 
m anagem ent cannot waive, such as the m anagem ent rights 
enumerated in Section 7106(a) of the S ta tu te  or the bar to bargain­
ing in Section 7117(a) over proposals inconsistent with other law 
or with government-wide rules or regulations.) Finally, a regula­
tion for which a compelling need may exist cannot restrict bargain­
ing where the bargaining unit is comprised of a majority of the 
agency’s or, in the case of a regulation issued by a prim ary na­
tional subdivision, the subdivision’s employees. 5 U.S.C. 7117(a)(3). 
See Association of Civilian Technicians, Montana Air Chapter v. 
FLIIA, 756 F.2d 172, 176-178 (D.C. Cir. 1985).

20



15

one of the S ta tu te ’s least restric tive  bars to  bargain­
ing. See 124 Cong. Rec. 29199 (1978) (statem ent of Rep. 
Ford) (“The com prom ise position in section 7117 was 
accepted w ith  the understand ing  th a t the compelling 
need te s t will be perm itted  to be raised in only a limited 
num ber of cases.” ).6 7

b. As the A uthority  s ta ted  in its decision in this case 
(App. 21a ), Section 7117(b) of the S ta tu te  empowers 
the A uthority  to resolve compelling need issues where, 
during the course of collective bargaining, “ an exclusive 
rep resen tative alleges th a t  no compelling need exists 
for any rule or regulation * * * which is then  in effect 
and which governs any m a tte r a t issue in such collec­
tive bargain ing .” 5 U.S.C. 7117(b)(1). F urther, as the 
A uthority  also noted (App. 22a-23a), the  A u th o rity ’s 
regulations im plem enting th is  provision require th a t 
when such a negotiability  d ispu te  arises, and when no 
actual or contem plated changes in conditions of employ­
m ent are involved, the compelling need issue is resolv­
ed through the negotiability procedures in Section 7117 
of the S ta tu te  and P a rt 2424 of the A u tho rity ’s regula­
tions. 5 C.F.R. 2424.5 (App. 10a).

However, a d ifferent s itua tion  is presented where 
alleged unilateral changes in conditions of employment 
are involved. Because the  S ta tu te , like the N ational 
Labor Relations A ct, im poses a “ continuing obligation

6 The burden of dem onstrating a compelling need for an agency 
regulation is a considerable one. E.g., NAGE Local 1114-62 and U.S. 
Army Dugway Proving Ground, Dugway, Utah, 26 F.L.R.A. No.
7 (Mar. 6, 1986) (compelling need not found under 2424.11 because 
dem onstration of monetary savings alone is not sufficient to 
establish th a t a regulation is essential, as distinguished from 
helpful or desirable); AFGE, Local 1928 and Naval A ir Develop­
ment Center, Warminster, Pennsylvania, 2 F.L.R.A. 451 (1980) (no 
compelling need found because agency failed to meet the burden 
necessary to prove a compelling need for its  regulation).

21



16

to  barg a in ” which “ rem ains th roughou t the p a rtie s’ 
ongoing relationship,” (FLRA  v. United S ta tes D epart­
m en t o f  the A ir  Force, 'Tinker A ir  Force Base, 735 F .2d 
a t 1516), it is a basic tenet of labor law th a t an employer 
assum es the risk  of having breached th a t bargaining 
obligation w henever the employer unilaterally  changes 
w orking conditions w ithou t bargaining. A pplying th is 
principle, it  is well estab lished  th a t if it subsequently  
can be shown th a t the  em ployer changed working con­
ditions b u t refused to bargain  over m atte rs  which were 
properly w ithin the  bargain ing  obligation, an unfair 
labor practice has been com m itted. See, e.g., N L R B  v. 
K atz, 369 U.S. 736 (1962) (private sector); F L R A  v. 
Social Security Adm inistration, 753 F.2d 156 (D. C. Cir.
1985) (federal sector). The A u th o rity ’s regulations 
which allow, in un ilateral change unfair labor practice 
cases, resolution of any of the agency’s negotiability  
defenses give effect to  th is  principle.

N othing in the legislative history indicates a congres­
sional desire to  have the S ta tu te  d epart from th is prac­
tice in those situations where the em ployer’s particular 
defense of nonnegotiability  involves an assertion  th a t 
an agency regulation bars bargaining, as opposed to  an 
assertion, for example, th a t  a governm ent-wide regula­
tion or a Section 7106 m anagem ent rig h t bars bargain­
ing. In  fact, the  S enate com m ittee repo rt re s ta te s  the 
continued applicability  of th is  general d u ty  to  bargain  
in unilateral change situations: “W here agency manage­
m ent proposes to  change established personnel policies, 
the exclusive representative m ust be given notice of the 
proposed changes and an opportunity  to negotiate over 
such proposals to the  ex ten t they are negotiable.”7 7

7S. Itep. 95-969, 95th Cong., 2d Sess. 104 (1978), reprinted in 
Legis. Hist, a t  764.

22



17

In  allowing for the unified processing of any compel­
ling need issues raised in a un ilateral change unfair 
labor practice case, the  A u tho rity ’s construction of the 
S ta tu te  also draw s support from established Executive 
Order practice. U nder the Executive O rder program , 
the obligation of an agency to  negotiate  prior to  m ak­
ing changes in employee working conditions was 
discussed in the 1975 Council R eport which s ta ted  the 
“ [Executive] O rder does require adequate notice and an 
opportun ity  to  negotiate  prior to changing established 
personnel policies and practices and m atte rs  affecting 
working conditions during the term  of an existing agree­
m ent unless the issues thus raised are controlled by cur­
ren t con tractual com m itm ents, or a clear and un­
m istakable w aiver is p resen t.” 1975 Council R eport a t 
41, reprinted in Legis. H ist, a t 1312.

S ubsequent to  the issuance of the 1975 Council Re­
port, section 11(d) of the Executive Order was amended 
to specifically authorize the  D epartm en t of L abor’s 
A ss is tan t S ecretary  for Labor-M anagem ent Relations 
(the office charged w ith initially resolving federal sec­
tor unfair labor practice complaints under the Executive 
Order) to  decide any negotiability  issues necessary to 
the resolution of such cases even though there m ay not 
be existing precedent from the Federal Labor Relations 
Council (the separa te  body which heard, am ong other 
things, negotiability  appeals) to  guide the A ssis tan t 
Secretary. In  so doing, section 11(d) provided for the 
unified processing of negotiability  issues in unilateral 
change unfair labor practice cases.8 As the A uthority ’s

8Section 11(d) provided:

(d) If, as the result of an alleged unilateral change in, or addi­
tion to, personnel policies and practices or m atters affecting 
working conditions, the acting party  is charged with a refusal

(Continued)

23



18

decision in this case pointed out, the 1975 am endm ents 
to  the Executive O rder authorized “ precisely w hat the 
A u th o rity ’s procedures, codified a t 5 C.F.R. §§ 2423.5 
and 2424.5, were prom ulgated to  perm it: unified pro­
cessing of any com pelling need negotiability  issue in 
the unfair labor practice proceeding in which it a rises” 
(App.25a) (footnote om itted).

c. The court’s decision below, sta ting  principally th a t 
the language of Section 7117(a)(2) estab lishes a “ con­
dition preceden t” (App.60a), overlooks the principle 
tha t, regardless of the nature  of an agency’s negotiabili­
ty  defense, an agency breaches the  “continuing obliga­
tion” to  bargain  whenever it  unilaterally  changes con­
d itions of em ploym ent and, in so doing, refuses to 
bargain  over a m a tte r th a t  subsequently  can be shown 
to have been w ith in  the  d u ty  to bargain. However, as 
the A uthority  s ta ted  in its  decision (App.24a), neither 
the S ta tu te  nor its  legislative h istory  suggests th a t 
Congress in tended to  m ake an exception in the federal 
sector to  th is  principle when the agency’s defense of 
nonnegotiab ility  involves the  compelling need negoti­
ability  issue th a t is otherw ise processed under Section 
7117(b) of the  S ta tu te .

(Continued)

to consult, confer or negotiate as required under this Order, the 
A ssistan t Secretary may, in the exercise of his authority under 
section 6(a)(4) of the Order, make those determ inations of 
negotiability as may be necessary to resolve the m erits of the 
alleged unfair labor practice. In such cases the party  subject 
to an adverse ruling may appeal the A ssistan t Secretary’s 
negotiability determ ination to the Council.

E.O. 11491, as amended, § 11(d), 3 C.F.R. 957 (1971-1975 comp.), 
reprinted in Legis. Hist, a t 1336. See also the 1975 Council Report 
a t 46-48, reprinted in Legis. Hist, a t 1323-1327.

24



19

An exam ination of the  legislative h istory  reveals not 
one com m ent in a congressional report nor one comment 
from a m em ber of Congress which supports  the cou rt’s 
conclusion.9 If C ongress had in tended such a m arked 
departure from basic precepts of labor law, there should 
be some indication from C ongress th a t such a depar­
tu re  is intended. See Bureau o f  Alcohol, Tobacco and  
Firearms v. F L R A , 464 U.S. 89, 103-104, 107 (1983). 
Given the absence of any legislative history supporting 
the  co u rt’s view of the  S ta tu te , the conclusion of the 
court below th a t  the A u th o rity ’s construction  of the 
S ta tu te  is im perm issible is sim ply wrong. See Chevron 
v. N ational Resources Defense Council, 467 U.S. 837, 
843 (1984); D efense L ogistics A g en cy  v. F L R A , 754 
F.2d 1003, 1013-1014 (D.C. Cir. 1985).

9 For example, the conference com m ittee report made no men­
tion of the language of Section 7117(a)(2) as introducing a “condi­
tion precedent,” so as to alter when the duty  to bargain is deemed 
to arise in unilateral change cases. The conference committee 
report stated:

Both the House and Senate authorize negotiations except 
to the ex ten t inconsistent with law, rules, and regulations 
(Senate sections 7215(c) and 7218(a); House sections 
7103(a)(12)(14) and 7117(a)(1), (2), and (3)). The Senate 
specifically s ta tes  th a t th is included policies set forth in the 
Federal Personnel Manual. The House contains no com­
parable wording.

The conference report follows the House approach 
throughout this section and other instances where there are 
similar differences due to  the Senate reference to policies, as 
well as rules and regulations. The conferees specifically in­
tend, however, th a t the term  “ rules or regulations” be inter­
preted as including official declarations of policy of an agency 
which are binding on officials and agencies to which they 
apply.

H R. Rep. 95-1717, 95th Cong., 2d Sess. 158 (1978), reprinted in 
Legis. Hist, a t  826.

25



20

2. W hile the  court below relied principally upon its  
reading  of the  language of Section 7117(a)(2) as d ispos­
ing of the issue in th is case, the court also m ade several 
subsid iary  conclusions which are plainly erroneous.

a. F irs t, the  court s ta ted  th a t C ongress’ creation of 
the Section 7117(b) expedited negotiability  appeal pro­
cedure for resolving assertions th a t there is a compel­
ling need for an agency regulation dem onstrates th a t 
C ongress rejected the old Executive O rder approach, 
which allowed negotiability  defenses, such as an asser­
tion of a com pelling need for an agency regulation, to 
be resolved in unilateral change unfair labor practice 
cases (App. 64a). F urther, the court s ta ted  th a t unified 
processing would d isregard  the several features of the 
7117(b) procedure which are different from an unfair 
labor practice proceeding—the 7117(b) procedure is ex­
pedited  and presented directly  to  the  A uthority , the 
FLR A  G eneral Counsel is no t a party , and a hearing 
is d iscretionary  (but if a hearing is held the agency is 
a necessary  party) (App. 67a-68a).

The S ta tu te 's  creation of the separate Section 7117(b) 
appeal procedure should no t be viewed as a congres­
sional rejection of the Executive O rder’s unified proc­
essing of negotiability defenses in unilateral change un­
fair labor practice cases. F irst, the separa te  and direct 
negotiab ility  appeal procedure also existed  under the 
E xecutive O rder (see 5 C.F.R. 2411.21-28 (1978), see 
specifically 5 C.F.R. 2411.22(b), 2411.25(b)(2) (1978)). 
Obviously, the  practice under the  Executive Order 
shows th a t the existence of th is separate  procedure was 
no t incom patible w ith allowing the  resolution of such 
compelling need issues in unilateral change unfair labor 
practice cases where the agency raises an agency regula­
tion in defense of its  failure to  bargain. There is no 
reason to  read Congress’ continuation of such a separate 
procedure as a rejection of anything.

26



21

Second, the various features in Section 7117(b), which 
the court s ta te s  (App.67a-68a) are no t p resen t in un ­
fair labor practice proceedings, are, w ith one exception, 
also features of the Section 7117(c) procedure for resolv­
ing all o ther kinds of allegations of nonnegotiability .10 
Yet neither Aberdeen nor the court below suggests th a t 
the A uthority  contravenes its S ta tu te  when it resolves 
the negotiability  issues (th a t would otherw ise be proc­
essed under the Section 7117(c) procedure) when they 
are raised as defenses in un ilateral change unfair labor 
practice cases.

Finally, regard less w hether the Section 7117(b) pro­
cedure or the unfair labor practice procedure is used to

,0 Like Section 7117(b), the Section 7117(c) procedure is ex­
pedited (7117(c)(6)) and presented directly to the A uthority, the 
FLEA General Counsel is not a party  (7117(c)(5)), and a hearing 
is discretionary (7117(c)(5)). The only difference is th a t under Sec­
tion 7117(b) if a hearing is held the agency is a necessary party, 
whereas there is no mention of the agency being a necessary party 
to any discretionary hearing held under the Section 7117(c) 
procedure.

The agency’s participation in a Section 7117(b) hearing may 
have its antecedents in the Executive Order. There, agencies were 
specifically encouraged to waive the assertions by local manage­
ment th a t agency regulations barred bargaining (see 1975 Coun­
cil Report, supra, reprinted in Legis. Hist, a t 1309-1310). Further, 
under the Executive Order, to ensure th a t an agency head had 
been given notice and an opportunity to waive such an assertion 
of nonnegotiability, the Council only accepted a compelling need 
negotiability appeal for processing if the union had specifically 
asked the agency head for an exception to th a t particular bar to 
bargaining and the agency head either did not respond or refused 
to gran t the exception (5 C.F.R. 2411.22(b) (1978)). Under the 
S tatu te , the requirem ent th a t an agency head be a party  to any 
discretionary hearing under Section 7117(b) similarly ensures that 
the agency head has an opportunity  to waive the regulation as 
a bar to bargaining (see Section 7117(b)(2)(A)) before the resources 
involved in holding a hearing are expended.

27



22

determ ine the m erits of an assertion  of a compelling 
need for an agency regulation, the outcom e of th a t 
determ ination  would be the same. In  either forum, the 
m erits are decided by the A uthority ; the agency’s 
burden of proof in dem onstrating  a compelling need for 
the regulation is the same (see 45 Fed. Reg. 3485 (1980)); 
and if a com pelling need is found, the agency is under 
no obligation to  bargain  over proposals which conflict 
w ith  the regulation.

b. Second, the court erred in viewing Executive 
Order 12107 (Dec. 28,1978), 3 C.F.R. 264 (1979), as b u t­
tressin g  its  conclusion th a t Congress rejected the E x­
ecutive O rder practice of allowing compelling need 
issues to  be resolved in un ilateral change unfair labor 
practice cases (App.60a).

E xecutive O rder 12107 was issued to  govern the 
federal labor m anagem ent relations program  for the 
10-day period betw een Jan u a ry  1, 1979 (the date  the 
Federal Labor R elations A uthority  came in to  being as 
a resu lt of R eorganization Plan No. 2 of 1978)’1 and 
Jan u a ry  11, 1979 (the d a te  the  S ta tu te  took effect).12 
Executive Order 12107 was the housekeeping m easure 
which reassigned Executive O rder ta sk s  from the ex­
piring  Federal Labor R elations Council and from the 
A ss is tan t Secretary  of Labor for Labor-M anagem ent 
R elations to the newly created  and single en tity , the 
Federal Labor R elations A u th o rity .13

W hile Executive O rder 12107 did no t spell ou t the 
fact th a t  negotiability  issues could be decided as p a rt 
of unilateral change unfair labor practice cases (as E x ­
ecutive O rder 11491, as amended, did in section 6(a)

n II. Doc. 95-341, 95th Cong., 2d Sess. (1978), reprinted in 
Legis. Hist, a t 630.

12Pub. L. No. 95-454, § 907; 92 S tat. 1227 (1978).
13II. Rep. 95-1396, 95th Cong., 2d Sess. 5 (1978), reprinted in 

Legis. Hist, a t 663.

28



23

and section 11(d)), there  w as no longer a need for the 
Executive O rder to do so. Form erly, under Executive 
Order 11491, the A ss is tan t S ecre tary ’s jurisdiction to 
resolve negotiability  issues in un ilateral change unfair 
labor practice cases w as an exception to the Council’s 
initial ju risd iction  over all negotiability  disputes. See 
1975 Council R eport, supra, reprinted in Legis. H ist. 
a t 1324-1327. Therefore, th a t  jurisdiction needed to be 
spelled out. However, w ith the advent of Reorganiza­
tion P lan No. 2, which gave the A uthority  initial 
jurisdiction over both  negotiability  and unfair labor 
practice d isputes, there  was no longer any need to 
specify such separa te  jurisd ictional au thority .

c. Third, the  court erroneously concluded th a t the 
A u th o rity ’s processing of compelling need issues in 
unilateral change unfair labor practice cases ham strings 
an agency or improperly restricts an agency’s flexibility 
(App. 62a, 69a). There are no draw backs to such unified 
processing. W hen the A uthority  concludes th a t an 
agency’s refusal to bargain  was justified  by an agency 
regulation for which there is a compelling need, resolv­
ing all the issues in one forum  obviously does not 
adversely affect the agency. Furtherm ore, regardless 
of w hether the  compelling need issue is processed as 
p a rt of appropria te  unfair labor practice cases, agen­
cies rem ain able to issue new regulations and they re­
main able to  enforce, as a bar to collective bargaining, 
any regulation which Congress intended to bar collec­
tive bargaining (i.e., any regulation for which the agency 
can dem onstrate  a com pelling need).

Thus, in situations where the A uthority  finds no com­
pelling need for the regulation which prom pted the 
change, the agency is not improperly affected.14 In this 
case, for exam ple, Aberdeen was only ordered to

14See Defense Logistics Agency  v. FLRA, supra, 754 F.2d at 
1013.

29



24

b a rg a in  p ro sp ec tiv e ly  and to  p o s t ap p ro p ria te  
notices.15 16 B u t even an order to  rescind a unilateral 
change over which there was a duty  to bargain is simply 
one well-accepted way in which a breach of the collec­
tive bargain ing  obligation is rem edied.16

Conversely, it is in the in te re st of the efficient and 
effective adm in istra tion  of the S ta tu te  th a t all issues 
be resolved in the one unfair labor practice proceeding. 
Unified processing of a compelling need issue in the un­
fair labor practice case in which it arises is responsive 
to “concern over duplicative proceedings and delay and 
prejudice to  governm ental em ployees.” 17 The dispute 
resolution process is stream lined and shortened ,18 
which effectuates C ongress’ goal to  facilitate and pro­
m ote the collective bargaining process by providing for 
the  resolution of all re levan t issues in one proceeding, 
thereby obviating  the  delay inherent in two separate  
and consecutive proceedings. In addition, employees are 
afforded a forum, and access to a remedy, th a t  can pro­
vide some form of retroactive relief in appropriate cases.

A ccordingly, con trary  to the conclusion of the court 
below, unified processing of compelling need issues in 
un ila teral change unfair labor practice cases does not 
h am string  or improper!}' re s tric t the flexibility of an

15The A uthority’s decision only ordered the agency to bargain, 
not to agree, on the proposal; the A uthority  did not decide the 
m erits of the proposal. And, “ (i]n collective bargaining, govern­
ment m anagers are presumably com petent to look out for govern­
ment in terests.” Department of Defense v. FLRA, 659 F.2d 1140, 
1157 (D.C. Cir. 1981), cert, denied, 455 U.S. 945 (1982).

16See Decision on Petition for Amendment of Rules, 23 
F.L.R.A. (No. 57) 405, 406-408 (Sept. 23, 1986), petition for review 
filed sub nom., National Labor Relations Board Union, et al. v. 
FLRA, No. 86-1624 (D.C. Cir. Nov. 17, 1986).

17Defense Logistics Agency  v. FLRA, supra, 754 F.2d at 1014 
(footnote omitted).

18M  at 1012.

30



25

agency. Instead , the  various policy considerations 
supporting the A u tho rity ’s construction of the S ta tu te  
prom pted the D.C. C ircuit to conclude th a t the A uthor­
ity 's  construction  is “ no t only a perm issible reading of 
the S ta tu te , b u t also a reasonable one, in the tru es t 
sense—nam ely, th a t  the A uthority  had good reasons 
for reading the S ta tu te  in th a t w ay.” 754 F.2d a t 1014.

Finally, the conflict the decision below produces with 
the decision of the D.C. C ircuit is especially disruptive. 
This C ourt has recognized th a t Congress, in enacting 
the N ational Labor Relations A ct, intended th a t there 
be “uniform  application” of s ta tu to ry  rules and pro­
cedures. Garner v, Team sters Local Union No, 776, 346 
U.S. 485, 490 (1953). U niform ity is a t least equally im­
p o rtan t to  federal sector labor m anagem ent relations, 
where bargaining units can be nationwide and the scope 
of the S ta tu te ’s coverage is worldwide. The obligation 
of an em ployer agency to  bargain  before m aking 
changes in employee working conditions should not 
vary from region to  region.

CONCLUSION
The petition  for a w rit of certiorari should be 

g ran ted .19
Respectfully subm itted .

R u t h  E . P e t e r s  *
Solicitor

W il l ia m  E . P e r s in a  
D ep u ty  Solicitor

A r t h u r  A . H o r o w it z  
A ssocia te  Solicitor

R o b e r t  J .  E n g l e h a r t  
A  ttorney

* Counsel of Record
A PR IL  1987

19“ I authorize the filing of this petition. Charles Fried, Solicitor 
General.”

31



32



No. 86-1715

Jin %  £$iipn>mr (Emul of %  ImtaJ Miti>a
O c t o b e r  T e r m , 1987

F e d e r a l  L a b o r  R e l a t io n s  A u t h o r it y , p e t it io n e r

v.

A b e r d e e n  P r o v in g  G r o u n d , 
D e p a r t m e n t  o f  t h e  A r m y

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

B R IE F FOR TH E RESPONDENT

C h a r l e s  F r ied  
Solicitor General

R ic h a r d  K. W il l a r d

Assistant A ttorney General

It iu is  R . C o h e n  
Deputy Solicitor General

L a w r e n c e  S. R o b b in s  
Assistant to the Solicitor General

W il l ia m  R a n t e r  
D e b o r a h  R . K a n t  

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217

33



QUESTION PRESEN TED

The Federal Labor-M anagem ent Relations Act, 5 
U.S.C. (& Supp. I l l )  7101 et seq. provides th a t a 
federal agency’s duty  to bargain  w ith its employees 
shall extend to a m a tte r th a t is the subject of an 
agency regulation only if the Federal Labor Rela­
tions A uthority  (the  A uthority) has determ ined, in 
a negotiability appeal under 5 U.S.C. 7117(b), th a t 
there is no “compelling need” fo r the regulation a t  
issue. The question presented in th is case is w hether 
a negotiability appeal under 5 U.S.C. 7117(b) is the 
only m eans by which the compelling need for an 
agency regulation m ay be challenged, or w hether the 
A uthority  also has the power to resolve the compel­
ling need issue in an u n fa ir  labor practice proceed­
ing under 5 U.S.C. 7118.

(i)

34



T A B L E  O F  C O N T E N T S

Opinions below........... .....................    1

Jurisdiction ...........      2

S tatem ent ............ ...........,............................................................  2

A rg u m en t.........................................................................    10

Conclusion.....................................................................................  16

TA BLE O F A U TH O R ITIES
Case:

Defense Logistics Agency  (Cameron Station , Vir­
g inia), 12 F.L.R.A. 412 (1983), a il’d sub nom. 
Defense Logistics Agency  V. FLRA, 754 F.2d 
1003 (D.C. Cir. 1985)................................. 6 ,11-12,13, 14

S ta tu te :
Federal Labor-M anagem ent Relations Act, 5 

U.S.C. (& Supp. I l l )  7101 et seq________   2
5 U.S.C. 71 0 2 ...................    2
5 U.S.C. 7103 (a) (14) ....................       15
5 U.S.C. 7 1 1 4 ................................      2
5 U.S.C. 7116(a) (1) .......................    5 ,8
5 U.S.C. 7 1 16(a) (5) ....... ......................................... 2, 5, 8
5 U.S.C. 7117 ........................... ...... ........ 3, 9, 10, 11 ,14 ,15
5 U.S.C. 7117(a) (2) ..................................... ......2, 5, 6 ,10
5 U.S.C. 7117(a) ( 3 ) .........................    5
5 U.S.C. 7 1 1 7 (b ) ............ ..................................2, 6 ,7 ,9 ,1 0
5 U.S.C. 7 1 1 7 (b )(1 ) .........       3
5 U.S.C. 7 1 1 7 (b ) (3 ) .................................................  3 ,11
5 U.S.C. 7117(b) ( 4 ) ..................... .......................... 2, 3, 11
5 U.S.C. 7118 .... ...... ........................ ..........................  2 ,3 ,8

M iscellaneous:
H R. Rep. 95-1403, 95th Cong., 2d Sess. (1978) . . 2 ,11
S. Rep. 95-969, 95th Cong., 2d Sess. (1978) ............. 11

(HI)

Page

35



In %  §ujirpnt? (ttmtrt vf ttye Ittttrik Platini
O c t o b e r  T e r m , 1987

No. 86-1715

F e d e r a l  L a b o r  R e l a t io n s  A u t h o r it y , 
p e t it io n e r

v .

A b e r d e e n  P r o v in g  G r o u n d , 
D e p a r t m e n t  o f  t h e  A r m y

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

BR IEF FOR TH E RESPONDENT

OPINIONS BELOW

The order of the court of appeals (Pet. App. 16a) 
sum m arily reversing the A uthority ’s decision is un ­
reported, as is the court of appeals’ order (Pet. App. 
17a) denying the A uthority’s motion for an in itial 
hearing  en banc. The court’s earlie r decision in 
U nited S tales A rm y  Engineer Center, F ort Belvoir v. 
F L R A  (Pet. App. 52a-69a), upon which the court 
based its sum m ary reversal in this case, is reported

( 1 )

36



2

a t 762 F.2d 409. The A uthority ’s decision and order 
(Pet. App. 18a-51a) is reported a t 21 F.L.R.A. No. 
100.

JURISDICTION

The judgm ent of the court of appeals was entered 
on Jan u a ry  28, 1987. The petition fo r a w rit of certi­
orari w as fded on A pril 24, 1987. The jurisdiction 
of this C ourt is invoked under 28 U.S.C. 1254(1).

STATEM ENT

1. The Federal Labor-M anagem ent Relations Act, 
5 U.S.C. (& Supp. I l l )  7101 et seq. (the A ct), “es­
tablishes a s ta tu to ry  basis for labor-m anagem ent re­
lations in the Federal service” (H .R. Rep. 95-1403, 
95th Cong., 2d Sess. 38 (1 9 7 8 )). The Act requires 
federal agencies to bargain  in good fa ith  w ith the 
exclusive representatives of units of employees about 
the term s and conditions of employment. See 5 
U.S.C. 7102, 7114. An agency’s refusal or fa ilure  to 
bargain in good fa ith  may constitute an u n fa ir  labor 
practice (5 U.S.C. 7 1 1 6 ( a ) ( 5 ) ) ;  w hether it  does so 
is determ ined in an u n fa ir  labor practice (U L P) 
proceeding under 5 U.S.C. 7118. The A ct provides, 
however, th a t an agency’s duty  to bargain  extends to 
m atters covered by an agency-wide rule or regula­
tion (or by a rule or regulation issued by a “prim ary  
national subdivision” of an agency, 5 U.S.C. 7117 
( b ) ( 4 ) )  “only if the A uthority  has determ ined un­
der i[5 U.S.C. 7117(b)!] th a t no compelling need 
* * * exists for the rule or regulation” (5 U.S.C. 
7 1 1 7 (a ) (2 ) ) .

Section 7117(b) establishes the procedures by 
which the A uthority  is to determ ine the “compelling 
need” for an agency regulation. I t  provides th a t

37



3

“|i '] n  any case of collective bargain ing  in which an 
exclusive representative alleges th a t no compelling 
need exists fo r any rule or regulation * * * which is 
then in effect and which governs any m a tte r a t  issue 
in such collective bargain ing , the A uthority  shall de­
term ine * * * w hether such a compelling need exists” 
(5 U.S.C. 7 1 1 7 (b ) (1 ) ) .  In  m aking th is determ ina­
tion, the A uthority  m ay conduct a hearing. 5 
U.S.C. 7 1 1 7 (b )(3 ) . Unlike a U LP proceeding (com­
pare 5 U.S.C. 7118), a Section 7117 hearing  “shall 
be expedited to the ex tent practicable and shall not 
include the |[A uthority ’s] General Counsel as a 
p a r ty ” (5 U.S.C. 7 1 1 7 (b ) (3 ) ) ,  bu t shall include the 
agency or p rim ary  national subdivision as a neces­
sary  p a rty  (5 U.S.C. 7 1 1 7 (b ) (4 ) ) .  And whereas a 
U LP proceeding m ay resu lt in the retroactive im­
position of sanctions against the agency, a finding of 
no compelling need under Section 7117 has only the 
prospective effect of requ iring  the agency, or the 
local employer, to negotiate over the subject m atte r 
purportedly  covered by the agency regulation.

2. The present case arose on September 14, 1981, 
when, in an effort to conserve energy, respondent de­
cided to close operations a t  the Aberdeen Proving 
Ground (A PG ) fo r three days, beginning the day 
a f te r  Thanksgiving, November 27, 1981. On Sep­
tem ber 15, David R. W eppner, respondent’s labor re­
lations specialist, m et w ith representatives of the 
various unions representing APG employees and noti­
fied them tha t, as a resu lt of the decision to curta il 
operations, all APG employees would be obliged to 
take annual leave on November 27. Pet. App. 34a- 
35a.

On October 6, respondent m et w ith union repre­
sentatives to discuss how the closure plans would be

38



4

implemented. Colonel Robert P. Jones, who chaired 
the meeting, re itera ted  th a t employees would have to 
take annual leave on November 27, and th a t if  an 
employee had not accrued annual leave tim e he could 
be advanced leave time, take compensatory time, take 
leave w ithout pay, or would be perm itted to work. 
Pet. App. 36a. Following the meeting, respondent in­
vited the unions “ to negotiate concerning the im pact 
and im plem entation of th[e|] decision” (id. a t 37a 
(citation o m itted )).

Negotiations took place on October 19, 1981. 
Union representatives proposed th a t instead of hav­
ing to take annual leave employees be granted  ad­
m inistrative leave (Pet. App. 38a). W eppner, rep­
resenting respondent, rejected th is proposal, explain­
ing th a t “ ‘the rules and regulations * * * * do not 
perm it him to do this and th a t i t  verges on nonnego­
tiability  in his opinion*” (ibid, (citation o m itted )). 
Respondent relied in p a rticu la r on Arm y and De­
partm ent of Defense regulations th a t generally pro­
hibit g ran tin g  adm inistra tive leave when a t least 24 
hours’ notice of an anticipated closure can be given.1

1 DA Regulation CPR 990-2 provides, in  relevant p a r t (Pet.
App. 42a-43a (quotation m arks o m itted )) :

S3-2. Relieving Daily, Hourly, or Piecework Employees
From Duty

*  ♦  *  ♦  »

c. Where advance notice can be given. The au thority  to 
excuse employees adm inistratively  is not to be used in 
instances w here the  period of in terrup ted  or sus­
pended operations can be anticipated sufficiently in 
advance to perm it a rran g in g  fo r assignm ent to  other 
work or the scheduling of annual leave. Normally, 
w here 24 hours' advance notice can be given, em-

39



5

3. The In ternational Association of M achinists 
and Aerospace w orkers (the union) th e rea fte r filed a 
U LP charge, alleging among other th ings th a t re ­
spondent had violated 5 U.S.C. 7 1 1 6 (a )(1 )  and (5) 
by refusing  to bargain  over the union's proposal tha t 
adm inistrative leave be gran ted  when APG was closed 
on November 27. On June 15, 1982, the adm in istra ­
tive law judge ruled in respondent’s favor and recom­
mended th a t the A uthority  dism iss the union’s com­
p la in t (Pet. App. 33a-51a). The A L J found th a t 
“l[r]espondent’s reliance on the DOD and DA Regu­
lations as the basis for its  rejection of '[the union’s] 
demand fo r adm inistra tive leave was in good fa ith ” 
(id. a t  43a). N oting th a t the DOD regulations were 
“ ‘agency’ regulations w ithin the m eaning of ![5 
U.S.C. 7 1 1 7 (a )(2 )  and ( 3 ) ] ” and th a t “ the DA 
Regulations were issued by a ‘p rim ary  national sub­
division of said agency’ w ithin the m eaning of ]5  
U.S.C. 7 1 1 7 (a ) (3 ) |] ,” the A L J explained th a t under

ployees who cannot be assigned to  o ther work m ust he 
placed on annual leave w ith or w ithout th e ir consent.

DOD Regulation I400.25-M provides, in relevant p a r t  (Pet. 
App. 43a (quotation m arks o m itted )) :

S3-1 * * *

d. Limitation on Authority to Dismiss Employees With­
out Charge to Leave

♦  ♦ *  *  *

(2) When, because of planned m anagem ent reasons, the 
closing of all o r p a r t of an  activ ity  is required for 
sh o rt periods of time, employees will be notified no 
less th an  one full work sh ift in  advance and will be 
required to  take annual leave unless leave w ithout 
pay is requested.

(3) Group dism issal au thority  will not be used to  create 
a holiday.

40



6

Section 7 1 1 7 (a )(2 )  the agency therefore had a duty 
to bargain  over the adm inistra tive leave proposal 
“ ‘only if  the A uthority  has determ ined under l[Sec- 
tion 7117 (b)j] th a t no compelling need * * * exists 
for the rule or regulation’ ” (Pet. App. 44a). Be­
cause ‘‘[tijhe A uthority  ha'[d] made no such deter­
m ination [w ith respect to] * * * e ither the DOD or 
the DA R egulation” (ib id .), the A L J concluded th a t 
“![r]espondent was under no duty  to bargain  as to 
the g ra n t of adm inistrative leave fo r November 27, 
1981” (id. a t  45a).

4. The A uthority  reversed (Pet. App. 18a-32a). 
I t  first rejected respondent’s contention (id. a t 21a) 
th a t “ it  had no duty  to establish a compelling need 
for its regulations w ithout the issue having been 
raised by the Union under the A uthority ’s negotiabil­
ity  procedures.” The A uthority  acknowledged (id. a t 
22a-23a) th a t “when an agency refuses to bargain  
over a union proposal during  ongoing collective b a r­
gaining negotiations because the proposal is alleged 
to be inconsistent w ith existing agency-wide regula­
tion fo r which a compelling need exists, section 7117 
of the S ta tu te  requires th a t the issue be resolved 
through the procedures in section 7117 of the S tatu te  
and P a r t  2424 of the A uthority ’s Rules and Regula­
tions.” B u t relying on its p rio r decision in Defense 
Logistics Agency (Cameron Station, V irg in ia ), 12 
F.L.R.A. 412 (1983), a lf’d sub nom. Defense Logis­
tics Agency  v. F L R A , 754 F.2d 1003 (D.C. Cir. 
1985), the A uthority  held (Pet. App. 23a) th a t ‘‘[a] 
different situation  is presented” when an agency is 
alleged to have made “un ilateral changes in condi­
tions of employment” and “ issues of negotiability—  
including, as in the in s tan t case, assertions of com­
pelling need fo r agency regulations— are  raised as

41



7

affirmative defenses” (ib id .). In  such cases, the A u­
tho rity  stated  (ib id .), the compelling need fo r an 
agency-wide regulation m ay be resolved in two differ­
en t ways. “ [T ]he  A uthority  has prom ulgated proce­
dures * * * which recognize a union’s r ig h t e ither:
(1) to seek resolution of the en tire  dispute, including 
the negotiability issues, in the u n fa ir  labor practice 
forum ; or (2) to seek in itia l and separate  resolution 
of the negotiability issues in the negotiability appeal 
fo rum ” (ib id .).

In  reaching th is conclusion, the A uthority  reasoned 
th a t in the p rivate  sector issues of negotiability m ay 
be resolved in u n fa ir  labor practice proceedings and 
i t  discerned nothing in the Act or in its legislative 
h istory  to “suggest[] th a t Congress intended to make 
an exception in the federal sector to th is principle” 
(P et. App. 23a-24a). The A uthority  said th a t the 
negotiability appeals procedures contained in Section 
7117(b) do not “preclude the A uthority  from  resolv­
ing any necessary negotiability issues, including 
those related to the compelling need fo r an agency 
regulation, in a un ila tera l change u n fa ir  labor prac­
tice case” (Pet. App. 24a). And it  found confirm a­
tion fo r th a t view in the “pre-S tatu te  labor-m anage­
ment relations program , Executive O rder 11491, 
'[which] authorized precisely w hat the A uthority ’s 
procedures * * * were prom ulgated to perm it: un i­
fied processing of any compelling need negotiability 
issue in the u n fa ir  labor practice proceeding in which 
i t  a rises” (id. a t  25a (footnote o m itted )). The A u­
th o rity  asserted th a t its  approach to the determ ina­
tion of compelling need issues “effectuates Congress’ 
goal to facilita te  and promote the collective bargain ­
ing process by providing for the resolution of all 
re levan t issues in one proceeding, thereby obviating

42



8

the delay inherent in two separate  and consecutive 
proceedings’* (ib id . ).

H aving decided th a t the compelling need for the 
regulations in this case could be resolved in the U LP 
proceeding, the A uthority  next found th a t respond­
ent had “failed to sustain  its burden of establishing 
a compelling need for the DOD and DA regulations 
in accordance w ith * * * the A uthority’s Rules and 
Regulations” (Pet. App. 27a). I t  held th a t respond­
ent had not shown th a t the regulations in question 
promoted the “goal of conserving energy” in th a t 
“ [t]h e  record is b arren  of evidence which would 
dem onstrate how the g ran tin g  of adm inistrative leave 
to u n it employees, ra th e r than  annual leave, as the 
Union’s proposal a t issue here would require, in any 
way affects the Respondent’s stated objective of con­
serving energy” (ib id .). The A uthority accordingly 
held th a t respondent had violated Section 7116(a) (1) 
and (5) when it  refused to negotiate concerning the 
adm inistrative leave proposal (Pet. App. 28a). I t  
ordered respondent to cease and desist from  its re­
fusal to negotiate, and it  granted  certain  additional 
affirmative relief (id. a t2 8 a-3 0 a).

5. Relying on its earlier decision in United States  
A rm y Engineer Center, Fort Belvoir v. F L R A , 762 
F.2d 409 (1985) (Pet. App. 52a-69a), the court of 
appeals, in an unpublished order, sum m arily reversed 
(id. a t  16a). In Fort Belvoir, a union institu ted  a 
U LP proceeding under Section 7118 when F o rt Bel­
voir, a component of the D epartm ent of the Army, 
refused to negotiate concerning an A rm y regulation 
th a t established a new perform ance appraisal system. 
As in the present case, the A uthority  decided in the 
context of the U LP proceeding th a t there was no 
compelling need for the A rm y regulation. The court

43



9

of appeals reversed, holding (P et. App. 57a-58a (em­
phasis in the o r ig in a l) ) th a t “![t]he Federal Labor 
M anagem ent Relations Act states in unam biguous 
term s tha t, where an agency regulation is asserted as 
a b a r to negotiations between a governm ental em­
ployer and a union, the FLRA  m ust determ ine th a t 
no compelling need fo r the regulation exists before 
any duty  to bargain  arises on the p a r t  of the em­
ployer.” The court observed fu r th e r  th a t “ [ i ] t  is 
illogical, in light of th is language, to m ain tain  th a t 
a union could charge an agency w ith ‘having en­
gaged in or engaging in an u n fa ir  labor p rac tice / 
5 U.S.C. § 7 1 1 8 (a ), because the employer has refused 
to bargain  over subject m a tte r as to which no duty to 
bargain  has been determ ined  to ex ist” (id. a t  61a 
(em phasis in the o rig in a l)) . The court examined 
the legislative h istory of the A ct and concluded th a t 
Congress had deliberately chosen “ to provide sep­
arate  avenues of negotiability appeals and u n fa ir  
labor practice proceedings to resolve different kinds 
of questions” (id. a t 67a (em phasis in the o rig in a l)) . 
N oting in p a rticu la r the procedural differences be­
tween a negotiability appeal under Section 7117(b) 
and a U LP proceeding, the court held th a t Congress 
intended under Section 7117 “ to give a governm ental 
agency the ‘flexibility to issue and revise regulations 
which the agency deems are  essential to accomplish 
its executive func tion / * * * while protecting the 
agency from  the risk  of thereby incurring  the sanc­
tions of an u n fa ir  labor practice proceeding” (Pet. 
App. 69a). The court accordingly concluded (ibid.) 
th a t  “Congress m eant the § 7117(b) negotiability 
appeal to be the sole means of determ ining a compel­
ling need question under the s ta tu te .”

44



10

ARGUMENT

The court of appeals’ decision is correct. There is, 
however, a conflict between the Fourth  C ircuit and 
the D.C. C ircuit concerning w hether the compelling 
need for agency-wide regulations m ust be determ ined 
in a negotiability appeal under Section 7117, or may 
also be determ ined in a U LP proceeding. While it is 
not clear th a t the D.C. C ircuit would decide the pres­
ent case differently than  the F ourth  C ircuit did, we 
believe th a t th is case is an appropriate  vehicle to re ­
solve the conflict We therefore agree w ith petitioner 
th a t fu r th e r review by this C ourt is w arran ted .

1. The court of appeals predicated its sum m ary 
reversal in th is case on its p rio r decision in Fort Bel- 
voir. There, the F ou rth  C ircuit held th a t compelling 
need may be challenged only in a negotiability appeal 
under Section 7117. The plain language of the s ta t­
ute requires th a t conclusion. Section 7 1 1 7 (a )(2 )  
states th a t the duty  to bargain  in good fa ith  extends 
to m atters covered by agency regulations “only if the 
A uthority  has determ ined under [Section 7 117(b )] 
th a t no compelling need * * * exists for the rule or 
regulation.” U ntil the A uthority  has made a deter­
m ination of compelling need, an agency is under no 
duty to bargain  over a m a tte r covered by a regulation 
and thus cannot have committed an u n fa ir  labor 
practice. As the court of appeals pu t it, “![!]t  is 
illogical, in light of th is language, to m aintain  th a t a 
union could charge an agency w ith ‘having engaged 
in or engaging in an u n fa ir  labor practice,' 5 U.S.C. 
§ 7 118(a), because the employer has refused to b ar­
gain over subject m atte r as to which no duty  to b ar­
gain has been determ ined  to ex ist” (Pet. App. 61a 
(emphasis in the o r ig in a l)).

45



11

The language of the s ta tu te  is well-suited to its 
evident purpose of “prescrib ing!] the righ ts and 
obligations of employees” while a t  the same tim e “es­
tablish [ing] procedures to m eet the special needs of 
the Federal Governm ent in the labor-m anagem ent re­
lationship” (II.R . Rep. 95-1403, supra, a t  38). In 
order to ensure “Federal agencies the r ig h t to m an­
age governm ent operations efficiently and effectively” 
(S. Rep. 95-9G9, 95th Cong., 2d Sess. 12 (1 9 7 8 )), 
Congress enacted in Section 7117 a separate  “proce­
dure fo r determ ining w hether m atters affecting con­
ditions of employment which are the subject of any 
* * * [agency-wide] rule or regulation shall be nego­
tiab le” (H .R . Rep. 95-1403, supra, a t 51). H earings 
under th a t section m ust be “expedited” ; they do not 
include the A uthority ’s General Counsel as a p a rty ; 
and they provide for participation by the agency or 
p rim ary  national subdivision th a t issued the regula­
tion as a necessary p a rty  (5 U.S.C. 7117(b) (3) and 
( 4 ) ) .  These procedures were carefully  designed to 
give the agency an appropriate  opportunity  to estab­
lish th a t “ there is a dem onstrated, and justified, and 
overriding need” fo r the regulation a t  issue (H.R. 
Rep. 95-1403, supra, a t  51). H aving enacted the ne­
gotiability  appeal procedures w ith such meticulous' 
care, Congress cannot be supposed a t  the same time 
to have, sub silentio, empowered the A uthority  to c ir­
cumvent Section 7117 entirely  by deciding compelling 
need questions in the context of a U LP proceeding— 
to which the General Counsel is a party , and to which 
the agency th a t prom ulgated the regulation ordinarily  
is not.

2. In rejecting the A uthority ’s position in Fori 
Belvoir, the F ou rth  C ircuit took issue (Pet. App. 
61a) w ith the decision of the D.C. C ircuit in Defense

46



12

Logistics Agency  v. F L E A , 754 F,2d 1003 (1985). 
In th a t case the agency issued a revised regulation 
redefining the class of employees required to file “Con­
fidential S tatem ents of Affiliations and F inancial In ­
terests” (754 F.2d a t 1004 (citation o m itted )). 
A fter one of the subordinate offices of the agency 
announced the changes to its employees, a union rep­
resenting an appropria te  bargain ing  u n it proposed 
certain changes in the new regulation. The agency 
claimed th a t the regulation was nonnegotiable and 
the union thereupon filed a U L P charge w ith the 
Authority. D isagreeing w ith the A L J in the case, 
the A uthority  concluded th a t it  was free to resolve 
the compelling need for the new regulation in the 
context of the U L P proceeding. I t  acknowledged (id. 
a t 1006 (citations om itted; emphasis added)) th a t 
“ the § 7117(b) negotiability appeal is the sole avenue 
for resolving the question of compelling need in the 
case ‘where an exclusive representative subm its pro­
posals on a m atte r subject to collective bargaining 
and the agency or activity  asserts th a t such proposals 
are nonnegotiable because they conflict w ith an exist­
ing agency regulation for which a compelling need 
exists.' ” The A uthority  contended, however, th a t 
‘‘[ti]he prom ulgation of a  new  agency-wide rule th a t 
effects * * * ‘actual or contemplated changes in con­
ditions of employment’ ” (ibid, (em phasis added)) 
may be considered in a U LP proceeding.

The D.C. C ircuit held th a t while the A uthority ’s 
construction of the s ta tu te  was “not required” (754 
F.2d a t  1011 (footnote o m itted )) , there was a “per­
missible” and “ reasonable” basis (id. a t  1014) for 
the A uthority ’s “distinction between, on the one hand, 
an agency’s refusal to bargain  over a proposal pu t 
forth during  ongoing negotiations th a t concerns a

4 7



13

m atte r covered by an existing agency-wide rule, and, 
on the other hand, a refusal to bargain  over a new 
agency-wide rule th a t effects a change in working 
conditions” (id. a t  1008). The court found the lan­
guage and h istory  of the s ta tu te  indeterm inate (see 
id. a t  1007-1011), and i-elied instead on policy rea­
sons th a t i t  found to ju s tify  determ ining the compel­
ling need fo r new regulations (as opposed to existing 
regulations) in a U L P proceeding (id. a t 1012-1013):

From  the perspective of the employees, the ULP 
proceeding is f a r  more desirable than the 
§ 7117(b) proceeding in the context of an agen­

cy’s refusal to bargain  over a proposed or newly 
prom ulgated rule affecting w orking conditions. 
W hen an agency, du ring  the course of negotia­
tions over a contract, refuses to bargain  over a 
proposal th a t the agency believes to be in con­
flict w ith an agency-wide rule, the employees 
suffer no harm  or lost expectations; they simply 
fail in an effort to change existing working con­
ditions. * * * By contrast, when the agency re­
fuses to bargain  over a new rule, prom ulgated in 
the middle of a contract term , the employees are 
made to suffer w hatever detrim ent * * * the rule 
effects.

In  ligh t of these policies, the court found th a t it  could 
not "say  the A uthority  acted in contravention of the 
s ta tu to ry  purpose” (id. a t  1013) when it concluded 
th a t it  was free under the Act to resolve the com­
pelling need for newly-issued regulations in a U LP 
proceeding.

3. As the F ourth  C ircuit recognized (Pet. App. 
61a), its holding in Fort Belvoir was in conflict with 
the D.C. C ircu it’s decision in Defense Logistics 
Agency. Both of those cases involved newly issued

48



14

regulations. The Fourth  C ircuit rejected (Pet. App. 
61a) any distinction between cases involving pre­
existing regulations and cases involving new or 
changed regulations, and held th a t in all cases com­
pelling need m ay be decided only in a negotiability 
appeal under Section 7117. By contrast, the D.C. 
Circuit had held in Defense Logistics Agency  th a t the 
compelling need fo r newly-issued regulations m ay be 
resolved in a U LP proceeding.

C ontrary to petitioner's assertion (Pet. 12, 25), 
tha t conflict is not squarely presented by the present 
case. Here, unlike in Defense Logistics Agency, the 
agency did not issue a new  regulation; ra ther, i t  as­
serted th a t an existing  regulation (as applied in the 
particu lar situation  of a post-Thanksgiving shut­
down) precluded negotiation concerning the union's 
adm inistrative leave proposal. The D.C. C ircuit’s 
opinion in Defense Logistics Agency  expressly de­
clined to consider w hether the compelling need for 
existing regulations m ay be determ ined outside Sec­
tion 7117.

B ut while i t  is thus unclear w hether the D.C. C ir­
cuit would have reached the same resu lt as the 
Fourth C ircuit did in the present case, we believe 
th a t the conflict between the circuits should be re­
solved and th a t this case is an appropriate  vehicle to 
do so. F o r the reasons adduced by the Fourth  C ir­
cuit, the D.C. C ircuit’s distinction between new and 
existing regulations is untenable. N othing in Section 
7117 carves out an exception fo r newly-issued regu­
lations and the D.C. C ircuit found no textual basis 
for the distinction th a t i t  drew. Moreover, the policy 
reasons fo r the s ta tu te  do not ju s tify  any such dis­
tinction: an agency's need fo r flexibility in prom ul­
gating regulations— and its strong in terest In being

4 9



15

a necessary p a rty  to any proceeding in which the 
compelling need fo r its  regulations is a t  issue— are 
not diminished when new, ra th e r than  existing, regu­
lations are involved.

In  addition, while the D.C. C ircu it’s decision is by 
its term s lim ited to newly-issued regulations, the A u­
thority  has m ade i t  clear th a t it  reads the case quite 
broadly. As both its  decision and its petition to this 
C ourt in th is case confirm, the A uthority  is ap p ar­
ently in ten t on resolving compelling need challenges 
in U LP proceedings whenever a regulation— newly- 
issued or otherwise— effects an “alleged un ilateral 
change[] in conditions of employment” (P et. 4 ). Be­
cause the phrase “conditions of employment” is de­
liberately broad under the s ta tu te  (see 5 U.S.C. 7103 
(a ) (1 4 ) ) , and because (as illustra ted  by th is case) 
the application of an existing regulation to new c ir­
cumstances in a m anner th a t can be said to change 
conditions of employment is a frequent occurrence, 
the A uthority , if  unchecked, will continue to decide a 
wide range of compelling need issues outside the 
fo rm at established by Section 7117.s We believe th a t 
such a practice is a t  odds w ith the compromise 
reached by Congress between the righ ts of federal 
employees on the one hand, and, on the other hand, 
the flexibility th a t federal agencies require in order 
to discharge th e ir public functions.

2 In fact, we a re  advised by the D epartm ent of the Army 
th a t the A uthority  has sought or is presently  seeking to  decide 
in U LP proceedings the compelling need fo r agency-wide regu­
lations governing m atters  as diverse as A rm y civilian drug 
testing, pay and frin g e  benefits, m erit promotions, reductions 
in force, and travel and per diem allowances.

50



16

CONCLUSION

The petition fo r a w rit of certio rari should be 
granted.

Respectfully subm itted.

C h a r l e s  F r ied  
Solicitor General

R ic h a r d  K . W il l a r d

Assistant Attorney General
W il l ia m  R a n t e r  
D e b o r a h  R u t h  K a n t  

Attorneys

J u l y  1987

T& rn. S» •OtfglNM SH? PRIMTIM0 Of?8CHj 1 9 8 7  1 8 1 4 8 3  4 0 4 0 6

51



52



No. 80-1715

|»  tlje Supreme (Eouri of tlje jMntteh ^tatee
O c t o b e r  T e r m , 1987

F e d e r a l  L a b o r  R e l a t io n s  A u t h o r it y , 
P e t it io n e r

v.

A b e r d e e n  P r o v in g  G r o u n d , 
D e p a r t m e n t  o f  t h e  A rm y

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

b r ie f  f o r  t h e  p e t it io n e r

RUTH E. PETERS*
Solicitor

WILLIAM E. PERSINA 
Deputy Solicitor

ARTHUR A. HOROWITZ
Associate Solicitor

ROBERT J. ENGLEHART 
Attorney

Federal Labor Relations Authority 
500 C Street, SW.
Washington, D.C. 20424 
(202) 3824)781

♦Counsel of Record

53



Q U ESTIO N  PR ESEN TE D

W hether under T itle V II of the Civil Service Reform 
A ct of 1978, 5 U.S.C. 7101 et seq., the Federal Labor 
R elations A uthority  is empowered to resolve, in an un­
fair labor practice proceeding involving allegations of 
a failure to  bargain  over changes in employee working 
conditions, the employer agency’s defense th a t a “ com­
pelling need” ex ists  for an agency regulation so as to 
bar negotiations over proposals inconsisten t w ith the 
regulation, ju s t  as the A uthority  indisputably  can 
resolve in an unfair labor practice proceeding other 
em ployer defenses to the bargain ing  obligation.

I

5 4



TABLE OF CONTENTS

Opinions B elow ............................................................................ 1
Ju risd ic tio n ..................................................................................  2
S ta tu tes Invo lved .......................................................................  2
Statem ent ..................................................................................... 2
Summary of A rg u m e n t............................................................  12
Argument ..................................................................................... 16

P age

The Federal Labor Relations A uthority is empowered 
to resolve, in an unfair labor practice proceeding 
involving allegations of a failure to bargain over 
changes in employee working conditions, the employer 
agency’s defense tha t a “compelling need” exists for an 
agency regulation so as to bar negotiations over pro­
posals inconsistent with the regulation, ju st as the 
A uthority indisputably can resolve in an unfair labor 
practice proceeding other employer defenses to the 
bargaining obligation .......................................................... 16

A. Only agency regulations for which the Authority
determ ines a compelling need exists, under the 
A uthority’s criteria established in 5 C.F.R. 2424.11, 
can bar negotiations over inconsistent bargaining 
proposals.........................................................................  19

B. The A uthority’s construction of the S ta tu te  im­
plements the well-established principle th a t if it 
subsequently can be shown th a t an employer 
changed working conditions bu t refused to bargain 
over m atters which were properly within the 
bargaining obligation, the employer has committed
an unfair labor practice .............................................  27

C. The A uthority’s practice of resolving whether there
is a compelling need for an agency regulation, when 
tha t issue arises as an agency defense in a unilateral 
change unfair labor practice case, is consistent with 
pre-S tatute p rac tice .....................................................  37

(H I )

5 5



IV

D. Considerations of public policy support the unified 
processing of a compelling need issue in the unfair 
labor practice case in which it a r is e s ....................  42

Conclusion..................................................................................... 46
Appendix ..................................................................................... la

TABLE OF AUTH ORITIES
Cases:

A F G E  v. FLRA, 778 F.2d 850 ...................................  34
AFGE, Local 1928 and Naval A ir  Development 

Center, Warminster, Pennsylvania, 2 F.L.R.A. 451
(1980) ..............................................................................  25

AFG E, Local 2875 and Department o f Commerce, Na­
tional Oceanic and Atm ospheric Administration, 
National Marine Fisheries Service, Southeast 
Fisheries Center, M iami Laboratory, Florida, 5
F.L.R.A. 441 (1981) ...................................................  36

AFGE, Local 380*1 and Federal Deposit Insurance Cor­
poration, Madison Region, 21 F.L.R.A. (No. 104)
870 (May 19, 1986).....................................................  25

Association o f Civilian Technicians, Montana A ir
Chapter v. FLRA, 756 F.2d 1 7 2 .............................  24

B oston D istrict Recruiting Command, Boston, 
M assachusetts and Commander, Fort Devens, Fort 
Devens, M assachusetts and 94th U.S. A rm y  
Reserve Command, Ilanscom A ir  Force Base, 
M assachusetts and Department o f the Army, 
Washington, D.C. and Department o f Defense,
Washington, D C., 15 F.L.R.A. 720 (1984)...........  32

Bureau o f Alcohol, Tobacco and Firearms v. FLRA,
464 U.S. 8 9 ...................................................................... passim

Chevron v. Natural Resources Defense Council, 467
U.S. 837 .......................................................................... 8, 33

Council o f Prison Locals v. Brewer, 735 F.2d
1497 ................................................................................  44

Decision on Petition [or A m endm ent o f Rules, 23 
F.L.R.A. (No. 57) 405 (Sept. 23, 1986), petition for 
review filed sub nom.. National Labor Relations 
Board Union, et al. v. FLRA, No. 86-1624 (D.C. Cir.
Nov. 17, 1986)..............................................................  44

T A B L E  O F  C O N T E N T S -C o n t in u e d :  P a g e

5 6



V

Defense Logistics A gency  v. FLRA, 754 F.2d
1003 ................................................................................... passim

D efense L o g is tic s  A g en cy , 12 F .L .R .A . 412
(1983| .................................................................................  7, 26

D ep a rtm en t o f  D e fen se  v. F L R A , 659
F.2d 1140, cert, denied, 455 U.S. 945 .............. 17, 18, 44

Department o f Health and Human Services, Office o f 
the Secretary, Headquarters, 20 F.L .R .A . 175
(1985) .................................................................................  32, 36

D ep a rtm en t o f H ealth  and H um an Services, 
Washington, D.C. and Department o f Health and 
Human Services, Region 7, Kansas City, Missouri,
16 F.L.R .A . 288 (1 9 8 4 )................................................  32, 36

Department o f the A ir  Force, Eielson A ir Force Base, 
Alaska, 23 F.L .R .A . (No. 83) 605 (Oct. 16,
1986).................................................................................... 30, 32

Department o f the A ir  Force, Flight Test Center, E d­
wards A ir  Force Base, California and Interdepart­
mental Local3854, AFGE, 21 F.L.R.A. (No. 6 0  445
(Apr. 24, 1986).................................................................  32

Department o f the A ir Force, Lowry A ir  Force Base, 
Denver, Colorado, 22 F.L .R .A . (No. 47) 464
(July 9, 1986)...................................................................  32

Department o f the A ir  Force, Scott A ir  Force Base,
Illinois, 5 F.L .R .A . 9 (1981).................................... 5

Department o f the Army, Fort Greely, A laska and 
Department o f the Arm y, 172d Infantry Brigade 
(Alaska), Fort Richardson, Alaska and Department 
o f the Army, Headquarters, U.S. A rm y Forces Com­
mand, Fort McPherson, Georgia and Department 
o f the Arm y, The Pentagon, Washington, D.C., 23

C a se s—C ontin ued: P age

F.L.R .A . (No. 105) 858 (Oct. 31, 1 9 8 6 )..................  31, 45
Department o f the Army, Toole A rm y Depot, Toole,

Utah and Local 2185, AFGE, Case No. 83 F S IP  62 
( 1 9 8 4 ) .................................................................................  44

5 7



VI

Department o f the Interior, Washington, D.C. and 
Bureau o f Reclamation, Washington, D.C. and 
Bureau o f Reclamation, Mid-Pacific Region, 25
F.L.R.A. (No. 6) 91 (Jan. 9, 1 9 8 7 )..........................  31, 35

D epartm en t o f the N avy, M arine Corps E x ­
change, Pearl Harbor, et a l v. FLRA, Nos. 87-7220, 
87-7276 (9th Cir. petition for review filed May 21,
1 9 8 7 )................................................................................  28

Department o f the Navy, N avy Exchange, Pearl 
Harbor v. FLRA, Nos. 87-7161, 87-7226 (9th Cir.
petition for review filed Apr. 17, 1987).................. 28

Department o f the Navy, Washington, D.C. and 
Department o f the Navy, U.S. Naval Supply Center, 
Oakland, California, 25 F.L.R.A. (No. 81) 972
(Feb. 27, 1 987)..............................................................  30, 31

Department o f Transportation, 26 F.L.R.A. (No. 32)
256 (Mar. 17, 1 9 8 7 ).....................................................  31

EEO C  v. FLRA, 744 F.2d 842, cert, dismissed,
106 S. Ct. 1678 ............................................................  17

Federal Deposit Insurance Corporation, Headquarters,
18 F.L.R.A. 768 (1 9 8 5 )............................................... 32

Federal/Postal/Retiree Coalition v. Devine, 751 F.2d
1424 ..................................................................................  42

First National Maintenance Corp. v. NLRB, 452 U.S.
6 6 6 ..................................................................................... 30

FLRA  v. Social Security Administration, 753 F.2d
156..........................................................................4, 13, 19, 29

FLRA  v. United S ta tes Department o f the A ir  Force,
Tinker A ir  Force Base, 735 F.2d 1513 . . . .4, 13, 19, 28 

Fort Knox Dependent Schools v. FLRA, Nos. 87-3395, 
87-3524 (6th Cir. petition for review filed Apr. 27,
1 9 8 7 )................................................................................  28

Harry Diamond Laboratories and Department o f the 
A rm y and Department o f Defense, 15 F.L.R.A. 216
(1984)................................................................................  32

Internal Revenue Service, Western Region, San
Francisco, California, 11 F.L.R.A. 655 (1983) 5

C a se s—C ontin ued: P a g e

5 8



VII

Lexington-Blue Grass A rm y Depot, Lexington, 
K entucky and AFG E, Local 894, 24 F.L.R.A. (No.
6) 50 (Nov. 17, 1986)...................................................  32

Library o f Congress v. FLRA, 699 F.2d 1280 ......... 17
N AG E, Local R14-62 and U.S. A rm y Dugway

Proving Ground, Dugway, Utah, 26 F.L.R.A. (No.
7) 59 (Mar. 6, 1986).....................................................  27, 45

N AG E, Local R14-87 and Kansas National Guard
Topeka, Kansas, 18 F.L.R.A. 736 (1985).............  27

NFFE, Local 1669 and Arkansas A ir National Guard 
17 F.L.R.A. 179 (1983), affirmed sub nom. NFFE,
Local 1669 v. FLEA, 745 F.2d 7 0 5 ........................  26

N L R B  v. Katz, 369 U.S. 7 36 .........................................passim
N T E U  and IRS, 27 F.L.R.A. (No. 25) 132 (May 29,

1987)................................................................................  17
NTEU , Chapter 6 and IRS, New Orleans District, 3

F.L.R.A. 748 (1980) ...................................................  17
NTEU , Chapter 207 and FDIC, 28 F.L.R.A. (No. 80)

625 (Aug. 21, 1987)...................................................... 27

C a se s—C ontin ued: P a g e

Overseas Education Association and Department o f  
Defense Dependents Schools, 27 F.L.R.A. (No. 71)
492 (June 24, 1987), petition for review filed sub 
nom. Overseas Education Association  v. FLRA,
No. 87-1279 (D.C. Cir. June 25, 1987) .................. 17

Pattern M akers' League o f North America  v. NLRB,
473 U.S. 95 ................................................................... 34

United S ta tes A rm y Engineer Center, Fort Belvoir v.
FLRA, 762 F.2d 409 ....................................................passim

United States Customs Service, Washington, D.C., 29
F.L.R.A. No. 35 (Sept. 30, 1987)............................. 29

United S ta tes Department o f Defense Dependent 
Schools, Fort Bragg, North Carolina v. FLRA, Nos. 
87-3061, 87-7226 (4th Cir. petition for review filed 
Apr. 27, 1 9 8 7 )..............................................................  28

59



VI I I

United States Department of Defense, Department of 
the Army, McAlester Army Ammunition Plant, 26
F.L.R.A. (No. 20) 177 (Mar. 13, 1 9 8 7 ).................. 31

United Stales Department of Health and Human 
Services, Social Security Administration, 26
F.L.R.A. (No. 102) 865 (Apr. 30, 1987) .................  29

United States Marshals Service, 12 F.L.R.A. 650
(1 9 8 3 )..............................................................................  32, 36

United States Naval Ordnance Station v. FLRA, 818
F.2d 545 .......................................................................... 44

U.S. Department of the Treasury, 27 F.L.R.A. (No.
102) 919 (June 29, 1987)............................................. 31

Veterans Administration Medical Center, Tampa,
Florida v. FLRA, 675 F.2d 260 .............................  44

Veterans Administration West Los Angeles Medical 
Center, Los Angeles, California, 24 F.L.R.A. (No.
73) 714 (Dec. 22, 1986)............................................... 5

S tatu tes:

The Civil Service Reform Act of 1978, §701, Pub. L.
No. 95-454, 92 S tat. 1111 (1978).............................  2

The Federal Service Labor M anagement Relations 
S ta tu te , as amended, 5 U.S.C. §§ 7101-7135 (1982 
& Supp. I l l  1985)........................................................  2, 12

5 U.S.C. 7103 (a) (12)...............................................  3 ,17
5 U.S.C. 7103 (a) (14)...............................................  3 ,17
5 U.S.C. 7105(a)(1).................................................  2 ,3
5 U.S.C. 7105(a)(2).................................................  2
5 U.S.C. 7105 (a) (2) ( I ) ...........................................  3
5 U.S.C. 7106 ..........................................................  3,30
5 U.S.C. 7106 ( a ) ...................................................... 18
5 U.S.C. 7114(b) ...................................................... 17
5 U.S.C. 7114(b)(2) ............................................... 3
5 U.S.C. 7114(b) (5 ) .................................................  3
5 U.S.C. 7116(a) ( 1 ) .................................................  11
5 U.S.C. 7116(a)(5).................................................  4,11
5 U.S.C. 7116(a)(7)................................................. 24, 43
5 U.S.C. 7 1 1 7 ..........................................................4, 9, 28
5 U.S.C. 7117(a)........................................................ 18
5 U.S.C. 7117(a)(1) .............................................3, 12, 20

C a s e s —C ontin ued: P age

60



IX

5 U.S.C. 7117(a) (2 ) ................................................... passim
5 U.S.C. 7117(a)(3)...................................................  4, 24
5 U.S.C. 7117(1)).......................................................... passim
5 U.S.C. 7117(b)(1) .............................................. 4, 20, 28
5 U.S.C. 7117(b)(2)(A )............................................. 35
5 U.S.C. 7117(c)...........................................................passim
5 U.S.C. 7117(c)(5)...................................................  34
5 U.S.C. 7117(c)(6)..........................................   34
5 U.S.C. 7118(a)..........................................................  9
5 U.S.C. 7119 ..............................................................  44
5 U.S.C. 7119(c)(2)...................................................  44
5 U.S.C. 7122 ( a ) ........................................................  32
5 U.S.C. 7123 ( a ) ........................................................  3
5 U.S.C. 7123(b)..........................................................  3
5 U.S.C. 7134 ............................................................... 3
5 U.S.C. 7135 (b ) ........................................................  42

Miscellaneous:

Executive Order 10988, 3 C.F.R. 521 (1959-1963
com p.)..............................................................................  2

Executive Order 11491, 3 C.F.R. 867 (1966-1970
c o m p .) ........................................................................... 2, 20, 42

§ 6(a).......................................................................... 42
§ 1 1 (a ) .. ...................................................................  20
§ 11(d)....................................................................... 39, 42

Executive Orders 11616, 11636, and 11838, 3 C.F.R.
605, 635, 957 (1971-1975 co m p .).............................  2

Executive Order 11838, 3 C.F.R. 957 (1971-1975
comp.) ...................................................................... 21, 39, 40

Executive Order 12107 ...........................................................41
H R. Doc. No. 95-341, 95th Cong., 2d Sess. (1978). 41
H R. 11280, 95th Cong., 2d Sess. (1978) .................. 22
H.R. Rep, No. 95-1396, 95th Cong., 2d Sess. (1978) 41
H R. Rep. No. 95-1403, 95th Cong., 2d Sess. (1978) 23
Pub. L. No. 95-454, § 907 (1978).................................  41
S. 2640, 95th Cong., 2d Sess. (1978)........................... 22

S ta tu te s  -C o n tin u ed : P age

61



X

M isc e lla n e o u s -C o n tin u e d : P a g e

S. Rep. No. 95-969, 95th Cong., 2d Sess. 104
(1 9 7 8 )..............................................................................  29

Reorganization Plan No. 2 of 1978 .............................  41, 42
Labor-M anagement Relations in the Federal Service, 

January  1975: Report and Recommendations of 
the Federal Labor Relations Council on the Amend 
ment of Executive Order 11491, as Amended, 
reprinted in Subcomm. on Postal Personnel and 
M odernization of the House Comm, on Post Office
and Civil Service, 96th Cong., 1st Sess., Legislative 
History of the Federal Service Labor^Management 
Relations Statute, Title VII of the Civil Service
Reform A ct of 1978, (Comm. Prin t No. 96 7) . passim

45 Fed. Reg. 3484 (1 9 8 0 )............................................... 31
45 Fed. Reg. 3485 (1 9 8 0 )............................................... 4, 25
124 Cong. Rec. 27593 (1 9 7 8 ).........................................  23
124 Cong. Rec. 29174 (1 9 7 8 ).......................................... 23
124 Cong. Rec. 29178 (1 9 7 8 ).........................................  24
124 Cong. Rec. 29187 (1 9 7 8 ).......................................... 17
124 Cong. Rec. 29199 (1 9 7 8 )........................................  17, 24
124 Cong. Rec. 29203 (1 9 7 8 ).......................................... 23
124 Cong. Rec. 29221 (1 9 7 8 )..........................................  23
5 C.F.lt. 2411.22 (b) (1978)............................................. 35
5 C.F.R. 2413.2 ................................................................. 22, 25
5 C.F.R. P art 2423 ..........................................................  2
5 C,F,R. 2423.5 ........................................................5, 7, 10, 31
5 C.F.R. P art 2424 .......................................................... 2, 4, 28
5 C.F.R. 2424.1-2424.10 ................................................  34
5 C.F.R. 2424.5 ................................................................ passim
5 C.F.R. 2424.11 ....................................................4 , 1 1 , 1 9 , 4 5
5 C.F.R. 2424.11 (a).......................................................... 25, 27
5 C.F.R. 2424.11 (b) .........................................................  25
5 C.F.R. 2424.1 1 (c)..........................................................25, 26

62



| i t  t(je Supreme (Emtrt of tl|e Jllntteh States
OCTOBER TER M , 1987 

No. 86-1715

F E D E R A L  LABOR R ELA TIO N S A U THORITY,
petitioner

v.
A B E R D E E N  PROVING GROUND, 

D E PA R T M E N T  OF T H E  ARMY

ON W R IT  O F C ER TIO R A R I TO 
T H E  U N ITE D  STA TES COURT OF A PPEA LS 

FOR T H E  FO U R TH  C IR CU IT

B R IE F  FOR T H E  PE T IT IO N E R

O PIN IO N S BELOW

The judgm ent of the court of appeals (Pet. App. 16a), 
sum m arily reversing the decision of the A uthority , is 
unreported. The co u rt’s earlier denial of the A uthor­
ity ’s m otion for hearing en banc (Pet. App. 17a) is 
unreported. The previous decision of the court of ap­
peals (Pet. App. 52a-69a) involving the sam e question, 
and upon which the co u rt’s sum m ary reversal was 
based, is reported  a t 762 F.2d 409; the cou rt’s denial 
of the petition  for rehearing, in th a t case, w ith sugges­
tion for rehearing en banc (Pet. App. 70a) is unreported. 
The decision and order of the Federal Labor Relations 
A uthority (Pet. App. 18a-5ia) is reported a t 21 F.L.R.A. 
No. 100.

(0

63



2

JU R IS D IC T IO N

The judgm ent of the court of appeals was entered on 
Jan u a ry  28, 1987. The petition  for a w rit of certiorari 
was filed on April 24, 1987 and was g ran ted  on Oc­
tober 5, 1987. The jurisdiction of this Court is invoked 
under 28 U.S.C. 1254(1).

ST A TU TE S INVOLVED

The relevant portions of the Federal Service Labor- 
M anagem ent Relations S ta tu te , as amended, 5 U.S.C. 
7101-7135 (1982 & Supp. I l l  1985) are reproduced in 
the appendix to the petition  (Pet. App. la-6a), and the 
relevant portions of the A u th o rity ’s regulations (5 
C.F.R. P a rts  2423 and 2424) are reproduced in the ap­
pendix to  the petition  (Pet. App. 6a-15a).

STA TEM EN T

1. The Federal Service Labor-M anagem ent Relations 
S ta tu te  (“ the S ta tu te” ) governs labor-management rela­
tions in the federal service.1 U nder the S ta tu te , the 
responsibilities of the Federal Labor Relations A uthor­
ity (“ the A u th o rity ” ) include adjudicating unfair labor 
practice com plaints, negotiability disputes, bargaining 
un it and representational election m atters, and resolv­
ing exceptions to arb itra tion  aw ards. See 5 U.S.C. 
7105(a)(1), (2); see also Bureau o f Alcohol, Tobacco and 
Firearms v. FLRA, 464 U.S. 89, 93 (1983). The A uthor­
ity  may also “ take such o ther actions as are necessary *

*The S ta tu te  was enacted as section 701 of the Civil Service 
Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978). Prior 
to the enactm ent of the S ta tu te , labor-management relations in 
the federal service were governed by a program established in 1962 
by Executive Order No. 10988, 3 C.F.R. 521 (1959-1963 comp.). 
The Executive Order program was revised and continued by Exec. 
Order No. 11491, 3 C.F.R. 861 (1966-1970 comp.), as amended by 
Exec. Orders Nos. 11616, 11636, and 11838, 3 C.F.R. 605, 634, 
957 (1971-1975 comp ).

64



3

and appropriate to effectively adm inister the provisions 
of [the S ta tu te ].” 5 U.S.C. 7105(a)(2)(I). The A uthor­
ity  is also empowered to engage in formal rulem aking 
p u rsu an t to 5 U.S.C. 7134, and to “ provide leadership 
in establishing policies and guidance” relating to federal 
sector labor relations m atte rs , p u rsu an t to 5 U.S.C. 
7105(a)(1). B A T F v , FLEA, supra, 464 U.S. at 93. The 
A uthority  m ay petition  for enforcem ent of its  orders 
in appropria te  U nited S ta te s  courts of appeals. 5 
U.S.C. 7123(b). Persons, including federal agencies, 
who are aggrieved by certain types of A uthority  orders 
may seek judicial review in the  courts of appeals. 5 
U.S.C. 7123(a).

a. U nder the S ta tu te , a federal agency m ust bargain 
in good faith with the exclusive representative of an ap­
propriate  bargain ing  u n it about u n it em ployees’ con­
ditions of em ploym ent and, upon the request of either 
party , execute a docum ent em bodying the agreed upon 
terms. 5 U.S.C. 7103(a)(12), 7114(b)(2), 7114(b)(5). The 
S ta tu te  defines “ conditions of em ploym ent” as “ per­
sonnel policies, p rac tices and m a tte rs , w hether 
established by rule, regulation, or otherwise, affecting 
working conditions * * * .” 5 U.S.C. 71G3(a)(14). 
However, the S ta tu te  also expressly excludes certain  
m atters from the general obligation to  bargain. There 
is no d u ty  to  bargain  over the righ ts  the S ta tu te  re­
serves to  m anagem ent as nonnegotiable. 5 U.S.C. 
7106. F urther, there is no d u ty  to  bargain  over pro­
posed co n trac t language which would bring about an 
inconsistency w ith a federal law, or w ith a governm ent­
wide rule or regulation. 5 U.S.C. 7117(a)(1).

As is re levan t to th is  case, there is also no du ty  to 
bargain over proposed con tract language which would 
bring about an inconsistency w ith either an agency 
regulation or a regulation of an agency’s prim ary na­
tional subdivision whenever the A uthority  determines,

65



4

under the criteria set forth in 5 C .F.It. 2424.11, th a t a 
compelling need ex ists for the regulation. 5 IJ.S.C. 
7117(a)(2), (a)(3). The employer agency which issued 
the regulation bears the burden of dem onstrating to the 
A uthority  th a t the regulation in question satisfies one 
of the three criteria set ou t in the A u th o rity ’s regula­
tions for establishing compelling need. See 45 Fed. Reg. 
3485 (1980).

b. Section 7117(b)(1) of the S ta tu te  empowers the 
A uthority  to resolve compelling need issues where, 
during the course of collective bargaining, “ an exclusive 
represen tative alleges th a t no compelling need exists 
for any rule or regulation * * * which is then in effect 
and which governs any m atte r a t issue in such collec­
tive bargain ing .” 5 U.S.C. 7117(b)(1). The A uthor­
ity ’s regulations im plem enting th is provision require 
th a t when an agency refuses to bargain over a proposal 
during ongoing collective bargaining negotiations 
because the proposal is alleged to be inconsistent with 
an existing agency wide regulation for which a compel­
ling need exists, and no actual or contem plated changes 
in conditions of em ploym ent are involved, the compel­
ling need issue is resolved through the procedures in 
section 7117 of the S ta tu te  and Part 2424 of the A uthor­
ity ’s regulations. 5 C .F.It. 2424.5 (Pet. App. 10a).

However, a different situation  is presented where 
alleged unilateral changes in conditions of employm ent 
are involved. Section 7116(a)(5) makes it an unfair labor 
practice for an agency “ to refuse to consult or negotiate 
in good faith with a labor organization as required by 
the |S ta tu teJ .” 5 U.S.C. 7116(a)(5). As is relevant to 
th is case, the bargaining obligation is specifically trig ­
gered whenever m anagem ent seeks to initiate a change 
in conditions of em ploym ent of un it employees. See, 
e.g., F L llA  v . Social Security Adm inistration, 753 F.2d

66



5

156 (D.C. Cir. 1985); cf. N L R B  v. Katz, 369 U.S. 736 
(1962) (under the N ational Labor Relations Act). In 
th is connection, the A uthority  has consistently  held 
th a t an agency violates the obligation to bargain when 
it unilaterally  in s titu te s  a change in conditions of 
em ploym ent w ithout notification to or bargaining with 
th e  em p lo y ees’ ex c lu siv e  b a rg a in in g  re p re se n ­
tative. See F L R A  v. United S ta tes D epartm ent o f the 
A ir  Force, T inker A ir  Force Base, 735 F.2d 1513, 1515 
n.5 (D.C. Cir. 1984). See also, e.g., Veterans A d ­
m inistration W est Los Angeles M edical Center, Los 
Angeles, California, 24 F.L .R.A . (No. 73) 714 (Dec. 22,
1986); Internal R evenue Service, W estern Region, San 
Francisco, California, 11 F.L.R.A. 655 (1983); D epart­
m ent o f  the A ir  Force, S co tt A ir  Force Base, Illinois, 
5 F.L.R.A. 9 (1981).

To resolve d isputes involving an employing agency’s 
alleged unilateral changes in conditions of employment, 
where issues of neg o tiab ility -in c lu d in g , as in the in­
s tan t case, assertions of compelling need for agency 
regulations—are raised as affirm ative defenses, the 
A uthority has prom ulgated specific procedures. These 
procedures recognize a union’s righ t either: (1) to seek 
resolution of the entire d ispute, including the nego­
tiability  issues, in the unfair labor practice forum; or
(2) to seek initial and separa te  resolution of the 
negotiability issues in the negotiability  appeal forum. 
5 C.F.R. 2423.5 and 2424.5 (Pet. App. 6a-7a, 10a).

2. On Septem ber 15, 1981, Aberdeen Proving Ground 
(“A berdeen” or “ the agency” ) m et w ith the In te rn a­
tional A ssociation of M achinists and Aerospace 
Workers, Local Lodge 2424, AFL-CIO (“ the union”) and 
informed the union of its decision to curtail operations 
of Aberdeen on the day after Thanksgiving, and th a t 
employees would be placed on “ forced annual leave” 
for th a t day (Pet. App. 19a). The union sought to

6 7



6

negotiate concerning the im pact of A berdeen’s decision 
to curtail its  operations and to negotiate the procedures 
leading to its  im plem entation (Pet. App. 19a). During 
negotiations held in October, the union presented, 
am ong o ther things, two proposals to g ran t ad­
m in istra tive leave to all employees during the closure 
of A berdeen’s operations, ra th e r than, as decided by 
Aberdeen, to place employees on forced annual leave 
(Pet. App. 19a).

Aberdeen refused to bargain  on these proposals, 
s ta tin g  th a t D epartm en t of Defense (Defense) and 
D epartm ent of the Army (Army) regulations precluded 
a g ran t of adm in istra tive  leave for an anticipated 
closure of operations (Pet. App. 19a).2 The negotia­
tion sessions ended, and a t no tim e prior to the closing 
did Aberdeen rescind its  refusal to bargain  over the 
union’s proposals (Pet. App. 19a).

The A u th o rity ’s General Counsel issued an unfair 
labor practice com plaint alleging th a t A berdeen’s 
refusal to negotiate  over the union’s adm in istra tive 
leave proposals was a failure to negotiate  in good faith 
w ith the union in violation of the S ta tu te  (Pet. App. 
34a). The com plaint was heard before an A uthority  
A dm inistrative Law Judge  (ALJ) who concluded in his 
recom m ended decision and order th a t, am ong other 
things, A berdeen had no du ty  to bargain  over the 
union’s proposal regard ing  the g ran tin g  of ad­
m in istra tive leave because the A uthority  had not 
previously determ ined th a t there was no compelling 
need for the agency regulations with which the union’s 
proposals were inconsisten t (Pet. App. 45a).

2These regulations are referred to as “ agency” regulations, 
although the Army regulation (as opposed to a D epartm ent of 
Defense regulation) is a regulation of a "prim ary national subdivi­
sion.” See 5 U.S.C. 7117(a)(2).

68



7

3.a. A fter issuance of the A L J’s recommended deci­
sion, b u t prior to the A u th o rity ’s decision in th is case, 
the A uthority  in Defense Logistics Agency, 12 F.L.R.A. 
412 (1983) had its first occasion to examine the conten­
tion th a t the issue of a compelling need for an agency 
regulation could never be resolved in an unfair labor 
practice proceeding. In th a t case the A uthority  noted 
th a t it  had issued regulations (5 C.F.R. 2423.5 and
2424.5) which concern the A u th o rity ’s s ta tu to ry  
a u th o rity  to  resolve d isp u te s  involving alleged 
unilateral changes in conditions of em ploym ent where 
issues of nego tiab ility  are also raised. D efense  
Logistics Agency, 12 F.L.R.A. a t 415. The A uthority  
noted th a t  in such cases the A u th o rity ’s regulations 
allow the labor organization to seek resolution of the 
negotiability issues by filing both  an unfair labor prac­
tice charge and a negotiability  appeal, b u t th a t the 
regulations also require the labor organization to select 
the forum in which to proceed first. Ibid. As applied 
to the d ispu te  a t hand, the A uthority  s ta ted  th a t if the 
union has selected the unfair labor practice forum in 
which to  proceed, and if the negotiability  issue in the 
case involves an agency assertion th a t a compelling 
need exists for the agency regulation, then the compell­
ing need issue m ust perforce be decided in the unfair 
labor practice proceeding. Defense L ogistics Agency, 
12 F.L.R.A. a t 416.

b. The D.C. C ircuit enforced th is decision of the 
A uthority  in D efense L ogistics A gency  v. F L R A , 754 
F.2d 1003 (D.C. Cir. 1985). The court examined the 
language and legislative h istory  of the S ta tu te , bu t did 
not find th a t they conclusively resolved the dispute over 
whether the A uthority  was empowered to resolve com­
pelling need negotiability issues in unilateral change un­
fair labor practice cases where the compelling need issue 
arises as p a r t of an agency’s affirm ative defense.

69



8

754 F.2d a t 1007-1008. The court then exam ined the 
Executive O rder practice which predated the S ta tu te . 
754 F.2d a t 1008-1011. The court noted th a t under the 
Executive Order, the A ss is tan t Secretary  of Labor for 
Labor-M anagem ent Relations (the office which had the 
responsibility of resolving unilateral change unfair labor 
practice cases in the federal sector) was authorized to 
resolve any negotiability issues necessary to the resolu­
tion of such a case w ithout first referring the negotia­
bility issues to the Federal Labor R elations Coun­
cil. 754 F.2d a t 1009-1011. The court noted th a t this 
jurisdiction of the A ss is tan t Secretary  to decide 
negotiability  issues in unilateral change unfair labor 
practice cases was an exception to the general require­
m ent th a t negotiability appeals were to be filed directly 
w ith the Council. 754 F.2d a t 1010-1011. The court 
concluded th a t, while not compelled, it was more 
natu ra l, in applying th is practice to the resolution of 
compelling need issues, to read “negotiability” as mean­
ing all aspects of negotiability , including compelling 
need. 754 F.2d a t 1011.

The D.C. C ircuit found fu rther th a t  the reason­
ableness of the A uthority ’s construction of the S ta tu te  
was additionally  supported  by the fact th a t  it s tream ­
lined and shortened the d ispu te  resolution proc­
ess. 754 F.2d a t 1011. F urther, the court found th a t 
the A uthority’s construction provided a forum in which 
a remedy for the refusal to bargain in unilateral change 
cases can be fashioned if no compelling need is found 
for the regulation. Ibid. Accordingly, noting the 
s tandard  in Chevron v. N atural Resources D efense  
Council, 467 U.S. 837, 843 (1984), for judicial review of 
an agency construction  of its  enabling act once it has 
been determ ined th a t Congress did not directly address 
the precise question of s ta tu to ry  construction a t issue, 
the court concluded the A u th o rity ’s construction was

70



9

“not only a permissible reading of the S ta tu te , b u t also 
a reasonable one, in the tru e s t sense — namely, th a t 
the A uthority  had good reasons for reading the S ta tu te  
in th a t w ay.” 754 F.2d a t 1014.

4. The propriety  of the A u th o rity ’s resolution of a 
compelling need issue as p a rt of a unilateral change un­
fair labor practice case was next reviewed in the Fourth  
Circuit in U nited S ta tes  A rm y  Engineer Center, Fort 
Belvoir v. F LE A , 762 F.2d 409 (4th Cir. 1985) (Fort 
Belvoir) (Pet. App. 52a-69a). The F ourth  C ircuit 
disagreed w ith the A uthority  and the D.C. Cir­
cuit. The court found, principally, th a t the A uthority’s 
construction was a t variance w ith the “plain language” 
of Section 7117 which s ta tes , in part, th a t  the du ty  to 
bargain ex tends to an agency rule or regulation “only 
i f  the A uthority  has determ ined under subsection (b) 
o f this sec tion” th a t  no compelling need exists for the 
rule or regulation (Pet. App. 60a) (em phasis in orig­
inal). The court s ta ted  these words in the S ta tu te  “ are 
those of condition precedent” and th a t it “ is clear th a t 
any du ty  to bargain  on the em ployer’s p a rt arises only 
after the FLRA  ‘has determ ined ’ th a t no compelling 
need for the d isputed regulation ex ists” (Pet. App. Ola) 
(emphasis in original). The court concluded th a t “ [i]t 
is illogical, in light of th is  language, to m aintain th a t 
a union could charge an agency with ‘having engaged 
in or engaging in an unfair labor practice,’ 5 U.S.C. 
§ 7118(a), because the employer has refused to bargain 
over subject m a tte r as to  which no du ty  to  bargain has 
been determ ined  to  ex is t” (Pet. App. 61a) (emphasis in 
original).

The A uthority  petitioned for rehearing of the court’s 
decision, w ith suggestion  for rehearing en banc. The 
court denied bo th  on Ju ly  26, 1985 (Pet. App. 70a).

5. a. Given the  conflict between the D.C. and the 
Fourth Circuits, when the A uthority  issued its decision 
in the in stan t case (Pet. App. 18a-32a), it reexamined the

71



10

propriety of the A uthority’s resolving an agency’s com­
pelling need defense as p a rt of a unilateral change un­
fair labor practice case. The A uthority  considered the 
consistency of its  prior holdings w ith the term s of the 
S ta tu te  and w ith the A u th o rity ’s own regulations (5 
C .F.lt. 2423.5 and 2424.5) (Pet. App. 21a-24a). The 
A uthority  com pared its  resolution of the compelling 
need issues in such an unfair labor practice case with 
its practice of resolving in unilateral change unfair labor 
practice cases all the o ther various defenses of 
nonnegotiability, i.e., defenses involving the other bases 
set ou t in the S ta tu te  for rendering m atte rs  non- 
negotiable (Pet. App. 23a-24a). The A uthority  con­
sidered its  practice in ligh t of the legislative h istory of 
the S ta tu te  and in light of the experience under the E x­
ecutive O rder and found support for the continuation 
of the A u th o rity ’s practice (Pet. App. 24a-25a). The 
A uthority  weighed considerations of public policy and 
found th a t, in those cases where no compelling need is 
found to exist, the A u th o rity ’s practice prom otes the 
collective bargaining process by resolving all relevant 
issues in one proceeding (thereby obviating the delay 
inherent in two separa te  and consecutive proceedings) 
and it affords the union access to a remedy for the 
agency’s failure to bargain  (Pet. App. 25a-26a). 
Moreover, the A uthority  noted th a t its  practice fully 
preserves an agency’s righ t not to negotiate in those 
cases where the agency’s assertion of a compelling need 
is upheld (Pet. App. 25a-26a). As a resu lt of th is reex­
amination, the A uthority reaffirmed its conclusion th a t 
the A uthority  can properly resolve the m erits of an 
agency’s compelling need defense for an agency regula­
tion in a unilateral change unfair labor practice case 
(Pet. App. 26a).

b. I n connection with the particular compelling need 
issue involved in the in s tan t case, the A uthority  con­
cluded th a t Aberdeen had failed to susta in  its burden

72



11

of establishing, in accordance w ith the A uthority ’s 
criteria  in 5 C .F .li. 2424.11, a compelling need for the 
Defense and A rm y regulations (Pet. App. 27a). The 
A uthority  noted th a t A berdeen had argued th a t there 
was a compelling need for the regulations because they 
were essential to m eet i ts  objective in curtailing  opera­
tions, which was to conserve energy (Pet. App. 27a). 
However, the A uthority  found th a t Aberdeen had fail­
ed to  estab lish  how the g ran ting  of adm inistrative, 
ra th e r than  annual, leave in any way affected A ber­
deen’s s ta ted  objective of conserving energy (Pet. App. 
27a). The A uthority  noted th a t A berdeen’s operations 
would be curtailed to the sam e extent, and energy con­
served to the sam e ex ten t, w hether the employees af­
fected were on annual leave or adm in istra tive leave on 
the day in question (Pet. App. 27a).

Accordingly, the A uthority  concluded th a t Aberdeen 
violated Section 7116(a)(1) and (5) of the S ta tu te  when 
it refused to  bargain  concerning the union’s proposal 
to g ran t employees adm in istra tive leave on the day 
after Thanksgiving, subm itted  in response to Aber­
deen’s notice th a t operations would be curtailed on th a t 
date (Pet. App. 28a). Am ong o ther things, the 
A uthority  ordered Aberdeen to bargain concerning the 
union’s proposal to g ran t adm inistra tive leave in lieu 
of forced annual leave for November 27, 1981 (Pet. App. 
29a).

c. Aberdeen petitioned for review of the A uthority ’s 
decision in the F ourth  Circuit. The court, after full 
briefing by the parties, which included a motion by the 
A uthority  th a t  the court hear the case en banc, denied 
the A u th o rity ’s m otion th a t the case be heard en banc 
(Pet. App. 17a). Subsequently, Aberdeen moved the 
court to reverse sum m arily the A u tho rity ’s decision 
because it was in conflict w ith the cou rt’s earlier

73



12

decision in Fort Belvoir. On Jan u a ry  28, 1987, the 
F ourth  C ircuit g ran ted  A berdeen’s m otion and sum ­
marily reversed the A u th o rity ’s decision “ on the 
au tho rity  of U.S. A rm y  E ngineer Ctr., Fort Belvoir u. 
F L R A , 762 F.2d 409 (4th Cir. 1985)” (Pet. App. 16a).3

SUM M ARY O F A RG U M EN T

The Federal Service Labor-M anagem ent Relations 
S ta tu te , 5 IJ.S.C. 7101-7135, requires a federal agency 
to bargain  in good faith  w ith the exclusive represen­
ta tive  of an appropria te  bargain ing  un it about un it 
employees’ conditions of employment. This s ta tu to ry  
bargaining obligation is a broad one; however, the 
S ta tu te  also enum erates several exclusions from the 
du ty  to bargain. B argaining proposals which would 
bring about an inconsistency w ith federal law or 
government-wide regulations, for example, are rendered 
nonnegotiable by Section 7117(a)(1) of the S ta tu te ; Sec­
tion 7117(c) establishes a procedure for resolving 
negotiability d isputes involving these and other allega­
tions of nonnegotiability. Bargaining proposals which 
would b ring  about an inconsistency w ith an agency 
regulation for which the A uthority  determ ines there is 
a compelling need are rendered nonnegotiable by Sec­
tion 7117(a)(2); Section 7 1 17(b) establishes a procedure 
for resolving th is particu lar kind of negotiability  
dispute.

Both the Section 7117(c) and Section 7117(b) pro­
cedures are the procedures in which the A uthority  
resolves cases “ which solely involve an agency’s allega­
tion th a t the du ty  to bargain  in good faith  does not ex­
tend to the m atte r proposed to be bargained and which 
do not involve actual or contem plated changes in

3 Given (.tie court's exclusive reliance on its earlier decision in 
Fort Belvoir, references to the court’s decision below will be 
references to the court’s decision in Fort Belvoir.

74



13

c o n d itio n s  of e m p lo y m e n t” (5 C .F .It.
2424.5). However, the A uthority  has determ ined th a t 
a d ifferent situa tion  is p resented  where alleged 
unilateral changes in conditions of em ploym ent are in­
volved. Because the S ta tu te , like the N ational Labor 
Relations A ct in the p rivate  sector, imposes a “conti­
n u in g  o b lig a tio n  to  b a rg a in ” w hich “ rem ain s  
th roughout the p a rtie s’ ongoing relationship ,” {FLEA  
v. United S ta tes  D epartm ent o f the A ir  Force, Tinker  
A ir  Force Base, 735 F.2d 1513, 1516 (D.C. Cir. 1984)), 
it is a basic tenet of labor law th a t an employer assumes 
the risk of having breached th a t bargain ing  obligation 
whenever the em ployer unilaterally  changes working 
conditions w ith o u t b a rga in ing . I t  is also well 
established th a t if it subsequently  can be shown th a t 
the em ployer changed working conditions b u t refused 
to bargain over m atters which were properly within the 
bargaining obligation, an unfair labor practice has been 
com m itted. See e.g., N L R B  v. Katz, 369 U.S. 736 
(1962) (private sector); F L R A  v. Social Security A d m in ­
istration, 753 F.2d 156 (D.C. Cir. 1985) (federal sector).

Hence, while Congress provided a procedure in Sec­
tion 7117(b) of the S ta tu te  for use with respect to resolv­
ing compelling need issues (just as Congress provided 
a procedure in Section 7117(c) for use with respect to 
resolving o ther negotiability  issues), there is no indica­
tion in the S ta tu te  or in its legislative history th a t Con­
gress intended either of these procedures to foreclose 
resolution of defenses of nonnegotiability, including 
compelling need issues, in unilateral change unfair 
labor practice cases. Indeed, Aberdeen has not 
co n tes ted  th a t  n e g o tia b ility  d isp u te s  th a t  are 
o th e rw ise  re so lv ed  u n d e r th e  S ec tio n  7117(c) 
procedure can appropriately  be resolved in uni­
lateral change unfair labor practice cases when 
they arise as agency defenses in the case. And

7 5



14

noth ing  in the legislative h istory  indicates a congres­
sional desire to have the S ta tu te  depart from this prac­
tice in those situations where the employer’s particular 
defense of nonnegotiability  involves an assertion th a t 
an agency regulation bars bargaining, as opposed to an 
assertion, for example, th a t a government-wide regula­
tion bars bargaining.

However, in Fort B elvoir  (Pet. App. 52a-69a), the 
court below incorrectly concluded—in conflict w ith the 
D.C. C ircuit’s decision in Defense Logistics A g en cy  v, 
F IJI A, 754 F.2d 1003 (D.C. Cir. 1 9 8 5 )- th a t the S ta tu te  
proh ib its the A uthority  from resolving, in a unilateral 
change unfair labor practice case, the particular agency 
defense of nonnegotiability involving an assertion th a t 
an agency regulation (for which there is a compelling 
need) bars bargaining. Moreover, the court went even 
fu rther and concluded th a t an agency’s simple asser­
tion of the com pelling need defense in a unilateral 
change unfair labor practice case postpones the du ty  
to bargain  from arising un til the A uthority , in a 
separa te  negotiability  proceeding, determ ines there is 
no compelling need for the agency regulation. I t  is in­
correct for the court below to have concluded th a t Con­
gress in tended the S ta tu te  to provide th a t an agency 
assertion of compelling need for an agency regulation, 
and a m eritless one a t tha t, should be allowed to d isrupt 
the bargain ing  obligation in unilateral change cases 
when C ongress also intended th a t agency regulations 
be one of the S ta tu te ’s least restric tive  bars to b ar­
gaining.

The A uthority’s construction of the S tatu te , as allow­
ing negotiability  d ispu tes otherw ise processed under 
Section 7117(b) to be resolved in unilateral change un­
fair labor practice cases when they are raised as agency 
defenses (just as are those negotiability d isputes o ther­
wise processed under Section 7117(c)), is no t only

7 6



1 5

consistent w ith well-established principles of labor law, 
and w ith the A u th o rity ’s regulations, b u t it continues 
the Executive O rder practice which predated the 
S ta tu te  and of which Congress was aware. When Con­
gress determ ined th a t agency regulations should 
preclude bargaining if a compelling need ex ists  for the 
regulation, and when Congress established a direct and 
separate  procedure for resolving such negotiability  
d isputes, C ongress continued both  the negotiability 
s tandard  and the d irect appeals procedure developed 
under the Executive O rder program . The Executive 
Order program  also allowed any negotiability  issue, 
when raised as an affirm ative defense by an agency in 
a unilateral change unfair labor practice case, to be 
resolved as p a r t of th a t case. In the absence of any 
indication from Congress in the S ta tu te 's  legislative 
h istory  th a t  C ongress intended to d epart from either 
basic p recepts of labor law or from established E x­
ecutive O rder practice, the A uthority ’s construction of 
the S ta tu te  properly continues th is practice. See 
Bureau o f Alcohol, Tobacco and Firearms v. FLRA, 464 
U.S. 89, 103-104, 107 (1983).

Finally, regardless w hether the Section 7117(b) pro­
cedure or the unfair labor practice procedure is used to 
determ ine the m erits of an assertion of a compelling 
need for an agency regulation, the outcome of th a t 
determ ination would be the same. In either forum, the 
m erits are decided by the A uthority ; the agency’s bur­
den of proof in dem onstrating  a compelling need for the 
regulation is the same; judicial review is equally availa­
ble from the A u th o rity ’s decision; and if a compelling 
need is found, the agency is under no obligation to b ar­
gain over proposals which conflict w ith the regulation.

A lthough the  outcom e of the compelling need deter­
m ination would be the sam e in either forum, unified 
processing of compelling need issues in an unfair labor

77



16

practice case does provide certain  d istinc t advantages. 
By providing for the resolution of all relevant issues 
in one proceeding, unified processing stream lines and 
shortens the entire d ispute  resolution process in 
un ilateral change unfair labor practice cases. In ad­
dition, in those cases where the agency regulation is 
found not to have a compelling need, and therefore not 
to be a bar to bargaining, unified processing of the com­
pelling need issue in the unfair labor practice case 
affords a forum, and access to a remedy, th a t can pro­
vide some form of retroactive relief where m anagem ent 
is found to have changed conditions of em ploym ent 
w ithout fulfilling its collective bargain ing  obligation. 
The various policy considerations supporting  the 
A u tho rity ’s construction of the S ta tu te  prom pted the 
D C. C ircuit to  conclude th a t the A u tho rity ’s construc­
tion is “ not only a perm issible reading of the S ta tu te , 
bu t also a reasonable one, in the tru e s t sense—namely, 
th a t the A uthority  had good reasons for reading the 
S ta tu te  in th a t w ay.” Defense Logistics A gency  v. 
F IJI A, supra, 754 F.2d a t 1014.

A RG U M EN T
T H E  FE D E R A L  LABOR RE LA TIO N S A U TH O RITY  
IS E M PO W E R E D  TO RESOLVE, IN AN U N FA IR  
LABOR PR A C T IC E  PR O C E ED IN G  INVOLVING 
A L LEG A TIO N S O F A F A IL U R E  TO BARGAIN 
OVER C H A N G ES IN EM PL O Y E E  W O R K IN G  CON­
D ITIO N S, T H E  EM PLO Y ER AG EN C Y ’S D E F E N S E  
T H A T  A “ CO M PELLIN G  N E E D ” E X IST S  FOR AN 
AGENCY REGULATION SO AS TO BAR NEG O TIA ­
T IO N S OVER PR O PO SA LS IN C O N SIST EN T W IT H  
T H E  REG U LA TIO N , JU S T  AS T H E  A U THO RITY 
IN D ISPU TA B LY  CAN RESOLV E IN AN U N FA IR  
L A B O R  P R A C T IC E  P R O C E E D IN G  O T H E R  
EM PLO YER D E F E N S E S  TO T H E  B A R G A IN IN G  
O B LIG A TIO N

Under the Federal Service Labor-M anagem ent Rela­
tions S ta tu te , a federal agency is required to bargain

78



17

in good faith w ith the exclusive representative of an ap­
propriate  bargaining un it about unit em ployees’ con­
d itio n s  of e m p lo y m en t. 5 U .S .C . 7103(a)( 12), 
7114(b). The S ta tu te  defines “ conditions of employ­
m ent” broadly, to  include “ personnel policies, prac­
tices and m atte rs , w hether established by rule, regula­
tion, or otherwise, affecting working conditions * *
5 U.S.C. 7103(a) (14). See E E O C  v. FLR A , 744 F.2d 
842, 845 (D.C. Cir. 1984), cert, dismissed, 106 S. Ct. 1678 
(1986); D epartm ent o f  Defense v. FLRA , 659 F.2d 1140, 
1143 n.2 (D.C. Cir. 1981), cert, denied, 455 U.S. 945 
(1982). C onsisten t w ith th is bargaining obligation, the 
A uthority  has long applied the principle th a t an agen­
cy is required to bargain over a m atte r which is encom­
passed w ithin the definition of conditions of employ­
m ent to the ex ten t of the agency’s discretion, th a t is, 
its  au tho rity  to take action4 or to recommend action.5

4 See NTEU, Chapter 6 and IRS, New Orleans District, 3 
F.L.R.A. 748, 759-760 (1980). See also, e g., Overseas Education 
Association and D epartment o f Defense Dependents Schools, 27 
F.L.R.A. (No. 71) 492, 535-536 (June 24, 1987) (agency obligated 
to negotiate over discretion to continue to pay living quarters 
allowance while an employee is in nonpay status), petition for 
review filed on other m atters sub nom. Overseas Education 
Association v. FLRA, No. 87-1279 (D.C. Cir. June 25, 1987); N TE U  
and IRS, 27 F.L.R.A. (No. 25) 132, 137 (May 29, 1987) (agency 
obligated to negotiate over discretion to establish rates of perfor­
mance incentive payments).

See generally 124 Cong. Rec. 29187 (1978) (statem ent of Rep. 
Clay), reprinted in Subcomm. on Postal Personnel and Moderniza­
tion of the House Comm, on Post Office and Civil Service, 96th 
Cong., 1st Sess., Legislative H istory o f the Federal Service Labor- 
M anagement Relations Statute, Title V II o f the Civil Service 
Reform A c t o f 1978, a t 933 (Comm. Prin t No. 96-7) (Legis. H ist ); 
124 Cong. Rec. 29199 (1978) (statem ent of Rep. Ford), reprinted 
in Legis. Hist, a t 956-957.

5Library o f Congress v. FLRA, 699 F.2d 1280, 1289 (D.C. Cir. 
1983).

7 9



18

The S ta tu te  also specifies several exclusions from the 
du ty  to bargain. For example, the du ty  to bargain does 
not encom pass proposals th a t would bring about an in­
consistency with federal law or w ith government-wide 
regulation (5 U.S.C. 7117(a)) or proposals th a t im­
properly in trude on the au thority  of m anagem ent of­
ficials of an agency to  exercise the righ ts  enum erated 
in Section 7106(a) of the S ta tu te  (5 U.S.C. 7106(a)). 
D epartm ent o f D efense  v. FLR A , supra, 659 F.2d a t 
1143 n.3, 1146. Section 7117(c) of the S ta tu te  estab ­
lishes a procedure for resolving these negotiability 
disputes. The S ta tu te  also removes from the bargain­
ing obligation proposals which would bring about an 
inconsistency w ith agency regulations for which there 
is a “ compelling need” (5 U.S.C. 7117(a) (2)), and Sec­
tion 7117(b) of the S ta tu te  establishes a procedure for 
resolving th is particu lar kind of negotiability  dispute.

In Fort Belvoir, the court read into the existence of 
the Section 7117(b) appeal procedure a prohibition on 
the A uthority ’s resolving, in a unilateral change unfair 
labor practice case, the employer agency defense of non­
negotiability  based upon an assertion of compelling 
need for an agency regulation, the negotiability  de ter­
mination otherwise made under the Section 7117(b) pro­
cedure. The co u rt’s conclusion is in m arked con trast 
to the accepted resolution of o ther employer defenses 
of nonnegotiability  in unilateral change unfair labor 
practice cases, m atte rs  otherw ise resolved under the 
Section 7117(c) procedure. The court goes even fur­
ther, however, and concludes th a t an agency’s simple 
assertion of the compelling need defense in a unilateral 
change unfair labor practice case postpones the duty  
to bargain from arising until the A uthority , in a 
separate negotiability proceeding, concludes there is no 
compelling need for the agency regulation.

80



This in terpre ta tion  of the S ta tu te  by the court below 
d isregards one of the m ost basic tenets in both federal 
sector and private sector labor law—th a t an employer’s 
decision to change working conditions triggers a 
bargaining obligation, and th a t if it subsequently  can 
be shown th a t the em ployer refused to bargain over 
m atte rs  which are properly within th a t bargaining 
obligation, an unfair labor practice has been com m it­
ted. See, eg., N L R B  v. Katz, 369 U.S. 736 (1962) 
(private sector); F L E A  v. Social Security  A dm in istra ­
tion, 753 F.2d 156 (D.C. Cir. 1985) (federal sector); 
F L R A  v. United S ta tes  D epartm ent o f  the A ir  Force, 
Tinker A ir  Force Base, 735 F.2d 1513 (D.C. Cir. 1984) 
(federal sector). It is incorrect to conclude, as the court 
did below, th a t Congress intended th a t an agency asser­
tion of compelling need for an agency regulation, and 
a m eritless one a t th a t, should be allowed to d isrup t 
the bargain ing  obligation in unilateral change cases 
when Congress also in tended th a t agency regulations 
be one of the S ta tu te ’s least restrictive bars to bargain­
ing. The decision of the court below, which reversed 
the A uthority , and which is in conflict w ith the D.C. 
C ircuit’s decision in D efense L ogistics A gency  v. 
F LR A , supra, 754 F.2d 1003, should be reversed.

A. Only agency regulations for which the Authority  
determines a compelling need exists, under the 
A u tho r ity ’s criteria established in 5 C.F.R. 2424.11, 
can bar negotiations over inconsistent bargaining 
proposals

Em ployer agencies m ay no t asse rt their own in ter­
nal regulations as bars to bargaining unless the regula­
tions are supported  by a “ compelling need.” 5 U.S.C. 
7117(a)(2); 5 C .F.R. 2424.11. The A u tho rity  is 
charged by Section 7117(a) (2) w ith prescribing regula­
tions to  be used in determ ining w hether a compelling

19

81



20

need ex ists  for agency regulations. The A uthority  is 
also charged by Section 7117(b) (1) with m aking the par­
ticular determ inations as to w hether a compelling need 
ex ists  for an agency’s regulation so as to bar negotia­
tion over inconsisten t proposals. Hence, whereas all 
governm ent-w ide regulations are a bar to bargaining 
over m atters which would bring about an inconsistency 
w ith those regulations, the only agency regulations 
which act as a bar to bargain ing  are those for which 
the A uthority  finds a compelling need. 5 U.S.C. 
7117(a)(1), (2).

1. When Congress s ta ted  in Section 7117(a) (2) th a t 
agency regulations for which the A uthority finds a com­
pelling need should act as a bar to bargaining over in­
consisten t bargain ing  proposals, Congress continued 
the particu lar negotiability  bar form ulated under the 
p re-S tatu te program  for labor-m anagem ent relations in 
the federal service, Executive Order 11491, as amended.

However, when Executive Order 11491 was first pro­
m ulgated in 1969, it barred negotiation over proposals 
inconsistent w ith all “ published agency policies and 
regulations,” regardless of compelling need.6 Such a 
broad bar to bargaining soon proved overly proscrip­
tive and was deemed unsatisfactory . As sta ted  in the 
1975 Report of the Federal Labor Relations Council, the 
body which adm inistered the Executive O rder pro­
gram: “ Experience under the Order, as well as 
testim ony during  the cu rren t review, establishes 
tha t, while considerable progress tow ard a wider scope 
of n eg o tia tio n  a t  the  local level has been ef­
fected * * * m eaningful negotiations a t the local 
level * * * have been unnecessarily constricted  in a 
significant num ber of instances by higher level agency

•’Executive Order 11491, § 11(a), 3 C.F.R. 867 (1966-1970 
comp.), reprinted in Legis. Ilist. a t 1250.

82



regulations not critical to effective agency managem ent 
or the public in te re s t.” 7

As a resu lt, Executive O rder 11838 (3 C.F.R. 957 
(1971-1975 comp.)) (prom ulgated in 1975 to im plem ent 
the recom m endations of the 1975 Council R eport by 
amending Executive Order 11491, as amended) effected 
notable change to th is  barrier to negotiations. I t  
removed agency regulations as a general bar to bargain­
ing over inconsisten t proposals and provided instead 
th a t only those agency regulations for which the Coun­
cil determ ined th a t a compelling need existed, and 
which were issued a t the agency headquarters level or 
a t the level of a p rim ary  national subdivision were to 
bar bargaining over inconsistent proposals.8 Further, 
and as had been the practice w ith respect to the resolu­
tion of the  o ther types of negotiability  d isputes, E x­
ecutive Order 11838 also introduced a direct appeal pro­
cedure to the Council for determ ining w hether an 
agency’s regulation m et the compelling need standard , 
so as to bar negotiation over inconsisten t proposals.9 
Finally, the Council prom ulgated specific criteria for

7Labor-M anagement Relations in the Federal Service January  
1975: Report and Recommendations of the Federal Labor Rela­
tions Council on the Amendment of Executive Order 11491, as 
Amended (1975 Council Report) a t 38 (App. 3a, infra), reprinted 
in Legis. Hist, a t 1306-1307. Copies of the 1975 Council Report 
have been lodged with the Clerk of the Court, and relevant por­
tions are also reprinted in the appendix to this brief.

8 See 1975 Council Report a t 37-40, reprinted in Legis. Hist. 
a t 1304-1311 (App. la-lOa, infra).

9 Under this procedure, the Council would consider an appeal 
from a labor organization th a t an agency regulation bars negotia­
tion “only if the labor organization has first requested an excep­
tion to the regulation from the agency head and th a t request has 
been denied.” 1975 Council Report a t 37, reprinted in Legis. Hist. 
at 1304-1305 (App. la, infra). According to the 1975 Council 
Report, this prerequisite for an appeal was proposed because 
“some negotiability disputes involving the validity of agency

83



22

determ ining w hether there was a compelling need for 
any given agency regu lation .10 11

2. In C ongress’ deliberations over the various bills 
th a t ultim ately resulted in the enactm ent of the S tatu te , 
the Senate bill, as reported  by the Senate Com m ittee 
on G overnm ental A ffairs and then passed by the 
Senate, would have continued the Executive Order pro­
g ram ’s approach w ith respect to agency regulations, 
barring  negotiation over proposals inconsistent only 
w ith those agency regulations for which the A uthority  
found a compelling need.11

On the o ther hand, the bill reported  by the House 
Com m ittee on P ost Office and Civil Service would have 
removed all agency regulations as a barrier to negotia­
tion. T h a t is, it would have broadened the du ty  to 
bargain by allowing, for the first time, bargaining over 
the term s of every agency regulation .12 Further, 
under the House Com m ittee bill, even proposals incon­
s is te n t w ith  governm ent-w ide reg u la tio n s  were 
negotiable as long as the A uthority  found the 
governm ent-wide regulation was not supported  by a 
“compelling need.” 13 Thus, the House Com m ittee bill 
would have retained the Executive O rder concept of 
“ compelling need,” b u t only for evaluating  w hether to

regulations have been brought to the Council without an attem pt 
firsL to seek exceptions to the agency regulations.” 1975 Council 
Report a t 40, reprinted in Legis. Hist, a t 1310 (App. 8a, infra). As 
a result, the Council was “of the opinion th a t the failure of the 
parties to explore the opportunity of an exception to a higher level 
agency regulation determined by the agency head to bar negotia­
tions, before recourse to the Council, reflects a disservice to the 
purposes of the Federal labor m anagement relations program .” 
/  bid.

10 See 5 C.F.R. 2413.2 (1978).
11 S. 2640, 95th Cong., 2d Sess. § 7215(c) (1978), reprinted in 

Legis. Hist, at 521.
12H.R. 11280, 95th Cong., 2d Sess. § 7117(a)(1) (1978), reprinted 

in Legis. Hist, a t 409.
13 Id. at §7117(a) (2).

84



23

allow negotiation over proposals inconsistent w ith 
the term s of governm ent-w ide  rules and regula­
tions.14

By the tim e the full House considered the House 
Com m ittee bill, the  Senate bill had already passed the 
Senate w ith its  bar to bargaining over agency regu­
lations for which the A uthority  found a compelling 
need.15 On Septem ber 13, 1978, on the House floor, 
Congressm an Udall offered for full House considera­
tion a su b s titu te  am endm en t16 which the H ouse 
passed 17 and which, in th is area, ultim ately  became 
the term s of the enacted S ta tu te .

The Udall su b stitu te  continued the Executive Order 
approach to bargaining in th is area, the approach which

14 In articulating the approach the Authority was to take in for­
m ulating the “ compelling need" criteria called for by section 
7117(a)(2), the House Committee Report stated:

The A uthority is to prescribe by regulation the criteria for 
determ ining “compelling need.” The committee intends tha t 
the criteria be similar to those prom ulgated by the Federal 
Labor Relations Council to determine “compelling need” for 
agency-wide regulations under the Executive order program, 
with the A uthority’s determ ination to be based primarily on 
whether there is a demonstrated, and justified, and overriding 
need for Governm ent-wide uniform ity in the m atte r 
covered by the rule or regulation.

II .R. Rep. No. 95-1403, 95th Cong., 2d Sess. 51 (1978), reprinted 
in Legis. Hist, a t 697.

15124 Cong. Rec. 27593 (Aug. 24, 1978), reprinted in Legis. 
Hist, at 1038.

16124 Cong. Rec. 29174 (1978), reprinted in Legis. Hist, at 907.
17124 Cong. Rec. 29203, 29221 (1978), reprinted in Legis. Hist. 

at 963, 966.

85



2 4

also was reflected in the Senate bill.18 I t  allowed 
negotiations over those agency regulations for which 
the A uthority  found no compelling need, b u t it pro­
hibited negotiations over proposals which would bring 
about an inconsistency w ith governm ent-wide regula­
tions.19 The Udall su b stitu te , however, did contain 
two specific changes from the Executive Order ap­
proach, in the direction of broader bargaining rights. 
F irst, if a collective bargain ing  agreem ent contained a 
provision which conflicts w ith an agency regulation, in­
cluding a regulation for which a compelling need exists, 
the Udall su b s titu te  m ade it an unfair labor practice 
for an agency to enforce the regulation if the agreem ent 
was in effect before the date  the regulation was pre­
scribed.20 Second, the Udall su b stitu te  specified th a t 
a regulation for which a compelling need may exist can­
not res tric t bargain ing  where the bargaining un it is 
com prised of a m ajority  of the agency’s or, in the case 
of a regulation issued by a prim ary national subdivi­
sion, the subdivision’s employees.21

3. Upon enactm ent of the S ta tu te , the A uthority  
was called upon by Section 7117(a)(2) to form ulate 
the criteria  it would use in determ ining w hether a

1HSee also 124 Cong. Ree. 29199 (1978) (statement of Rep. Ford) 
("The compromise position in section 7117 was accepted with the 
understanding th a t * * * the compelling need tes t will be per­
m itted to he raised in only a limited number of cases ” ), reprinted 
in Legis. Hist, at 956.

l9Compare section 7117(a)(2) (124 Cong. Rec. 29178 (1978), 
reprinted in Legis. Hist, at 915) with 5 U.S.C. 7117(a)(2).

20Compare section 7116(a)(7) (124 Cong. Rec. 29178 (1978), 
reprinted in Legis. Hist, at 915) with 5 ll.S.C. 7116(a)(7).

21 Compare section 7117(a)(3) (124 Cong. Rec. 29178 (1978), 
reprinted in Legis. Hist, at 915-916) with 5 U.S.C. 7117(a) (3). See 
also Association o f Civilian Technicians, Montana A ir Chapter v. 
FLU A, 756 F.2d 172, 176-178 (D.C. Cir. 1985).

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25

compelling need exist ed for an agency regulation so as 
to bar negotiation over inconsisten t proposals. In  its 
regulations, the A uthority  has adopted three such 
criteria.22 F irs t, if a regulation  is “ essential, as 
distinguished from helpful or desirable,” to the ac­
complishment of the agency mission in a m anner con­
sistent w ith the requirem ents of an effective and effi­
cient governm ent, the A uthority  will find a compelling 
need. 5 C.F.R. 2424.11(a). Second, if a regulation is 
“necessary to  insure the m aintenance of basic m erit 
principles,” the A uthority  will find a compelling 
need. 5 C.F.R. 2424.11(h). Third, if a regulation im­
plements an “ essentially  nondiscretionary” m andate 
from “ law or o ther outside au th o rity ,” the A uthority  
will find a compelling need. 5 C.F.R. 2424.11(c).

Further, when the A uthority  adopted the specific 
compelling need criteria, the A uthority  also specified 
that the burden of dem onstrating  a compelling need 
rests w ith the  em ployer agency. 45 Fed. Reg. 3485 
(1980). The agency carries th is  burden because it has 
the g rea tes t fam iliarity  w ith the circum stances under 
which the regulation was issued and the purpose it was 
designed to  serve. See AF G E, Local 1928 and Depart­
ment o f the N avy, N aval A ir  D evelopm ent Center, War­
minster, Pennsylvania, 2 F.L.R.A. 451, 454 (1980). The 
agency m u s t produce the  necessary  fac ts  and 
arguments to  support its  compelling need claim, as the 
Authority is no t in a position on its own to determ ine 
the purposes the regulations are designed to achieve 
or their im portance to  the agency. AF G E , Local 3804

22There were five compelling need criteria under the Executive 
Order program. 5 C.F.R. 2413.2 (1978). The A uthority’s first 
criterion subsumes three criteria from the Executive Order pro­
gram, and the A uthority’s second and third criteria continue the 
other two criteria developed under the Executive Order pro­
gram. See 45 Fed. Reg. 3485 (1980).

87



26

and Federal D eposit Insurance Corporation, M adison  
Region, 21 F.L.R.A. (No. 104) 870, 881 (May 19, 1986). 
Generalized and conclusionary reasoning does not sup­
port a finding of compelling need. Ibid. Accordingly, 
it is now well-settled th a t to estab lish  th a t a proposal 
is nonnegotiable on the basis of compelling need, an 
agency m ust identify a specific agency regulation; show 
th a t there is a conflict between its  regulation and the 
proposal; and bear the burden of coming forward with 
the necessary affirm ative support for its assertion th a t 
the regulation satisfies one of the A u th o rity ’s com­
pelling need criteria.

As a consecjuence of both  the  fact th a t  only those 
agency regulations for which there is a compelling need 
bar bargaining and the fact th a t the  compelling need 
te s t is a s trin g en t one, agency regulations are one of 
the S ta tu te ’s least restric tive  bars  to bargaining. Of 
the 85 A uthority  decisions, issued over a period of 
slightly  more than  four years,23 th a t counsel for the 
A uthority  have identified as addressing an employer 
agency’s co n ten tion  th a t  an agency regu la tion  
should be found to have a compelling need so as to bar 
bargaining, in 12 decisions the A uthority  found a 
compelling need.24 To date, no court has ruled on

23These 85 decisions were issued during the period from July 
29, 1983 (the date of the A uthority’s lead decision concerning the 
issue in this case (Defense Logistics Agency, 12 F.L.R.A. 412 (see 
page 7, supra))) through the end of fiscal year 1987.

24 Five of the 12 cases concern findings of compelling need for 
various Defense D epartm ent regulations which specify and 
regulate, pursuant to congressional direction (thereby satisfy­
ing the third compelling need criterion, 5 C.F.R. 2424.11(c)), the 
use of government quarters by employees during tbeir travel 
s ta tu s  or tem porary duty  (e g., NFFE, Local 1669 and Arkansas 
A ir National Guard, 17 F.L.R.A. 179 (1983), affirmed sub nom.

88



an A uthority  finding of no compelling need for an 
agency regulation.25

B. The A u tho r ity ’s construction of the S ta tu te  im­
plem ents the well-established principle th a t  if it 
subsequently can be shown tha t  an employer changed 
working conditions bu t refused to bargain over m at­
ters which were properly within the bargaining obliga­
tion, the  employer has committed an unfair labor 
practice

As the A uthority  s ta ted  in its  decision in th is case 
(Pet. App. 21a), Section 7117(b) of the S ta tu te  empowers

27

NFFE, Local 1669 v. FLEA, 745 F.2d 705 (D.C. Cir. 1984)). Three 
of the 12 cases, again pursuant to the third compelling need 
criterion (5 C.F.R. 2424.11(c)), concern findings of compelling need 
for aspects of National Guard Bureau regulations which link reten­
tion and promotion rights for civilian technicians to their military 
position and performance {e.g., NAG E, LocalR14-87and Kansas, 
National Guard, Topeka, Kansas, 18 F.L.R.A. 736 (1985)).

In the final 4 cases, the A uthority  has since altered its original 
finding of compelling need. See N AG E, Local R14-62 and U.S. 
A rm y Dugway Proving Ground, Dugway, Utah, 26 F.L.R.A. (No. 
7) 59 (Mar. 6, 1986) (reversing NAGE, LocalR14-62and U.S. Arm y  
Dugway Proving Ground, Dugway Utah, 18 F.L.R.A. 307 (1985) 
and NAG E, LocalR14-9 and U.S. A rm y Dugway Proving Ground, 
Dugway, Utah, 18 F.L.R.A. 344 (1985)) (compelling need not found 
under section 2424.11(a) because dem onstration of monetary sav­
ings alone is not sufficient to establish th a t a regulation is essen­
tial, as distinguished from helpful or desirable). And see NTEU, 
Chapter 207 and FDIC, 28 F.L.R.A. (No. 80) 625 (Aug. 21, 1987) 
(motion for reconsideration denied in 29 F.L.R.A. No. 120 (Nov. 
6,1987) (reversing, as law of the case (pursuant to N TE U  v. FLRA, 
813 F.2d 472 (D.C. Cir. 1987)) N T E U  Chapter 207 and FDIC, 21 
F.L.R.A. (No. 36) 282 (Apr. 14,1986) and N T E U  Chapter 207 and 
FDIC, 14 F.L.R.A. 598 (1984)), petition for review filed sub nom. 
FDIC  v. FLRA, No. 87-1596 (D.C. Cir. petition filed Oct. 19,1987).

25 Pending are petitions for review where the employer agen­
cies in their briefs have raised compelling need issues. United

89



28

the A uthority  to resolve compelling need issues where, 
during the course of collective bargaining, “ an exclusive 
represen tative alleges th a t no compelling need exists 
for any rule or regulation * * * which is then in effect 
and which governs any m a tte r a t issue in such collec­
tive bargain ing .” 5 U.S.C. 7117(b)(1). F urther, as the 
A uthority  also noted (Pet. App. 22a-23a), the A uthor­
ity ’s regulations im plem enting th is provision require 
th a t when such a negotiability dispute arises, and when 
no actual or contem plated changes in conditions of 
em ploym ent are involved, the compelling need issue be 
resolved through the negotiability  procedures in Sec­
tion 7117 of the S ta tu te  and P a rt 2424 of the A uthor­
ity ’s regulations. 5 C .F .lt. 2424.5 (Pet. App. 10a).

However, the A uthority  properly concluded th a t a 
different situation is presented where alleged unilateral 
ch an g es  in co n d itio n s  of em p lo y m en t are in ­
volved. Because the S ta tu te , like the N ational Labor 
Relations Act, imposes a “ continuing obligation to 
bargain” which “ rem ains throughout the parties’ ongo­
ing relationship,” (FLRA  v. United S ta tes Departm ent 
o f the A ir  Force, Tinker A ir  Force Base, supra, 735 F.2d

States Department o f Defense Dependent Schools, Fort Bragg, 
North Carolina v. FLRA, Nos. 87-3061,87-7226 (4th Cir. Apr. 27, 
1987) [reviewing decision and order in 25 F.L.R.A. (No. 96) 1132 
(Feb. 27, 1987)]; Fort Knox Dependent Schools v. FIM A, Nos. 
87-3395, 87-3524 (6th Cir. Apr. 27, 1987) [reviewing decision and 
order in 25 F.L.R.A. (No. 95) 1119 (Feb. 27, 1987)]; Department 
of the Navy, N avy Exchange, Pearl Harbor v. FLRA, Nos. 87-7161, 
87-7226 (9th Cir. Apr. 17, 1987) [reviewing decision and order in 
25 F.L.R.A. (No. 65) 796 (Feb. 19, 1987)], now consolidated with 
Department o f the Navy, Marine Corps Exchange, Pearl Harbor, 
et al. v. FLRA, Nos. 87-7220, 87-7276 (9th Cir. May 21, 1987) 
[reviewing decision and order in 26 F.L.R.A. (No. 47) 613 (Mar. 
25, 1987) j.

90



29

a t 1516), it is a basic tenet of labor law th a t an employer 
assum es the risk of having breached th a t bargaining 
obligation whenever the employer unilaterally changes 
working conditions w ithout bargaining. See, e.g., United 
Sta tes Customs Service, Washington, D.C., 29 F.L.R.A. 
No. 35 (Sept. 30, 1987); United S la tes  D epartm ent o f  
H ealth and H um an Services, Social Security  A d ­
ministration, 26 F.L.R.A. (No. 102) 865 (Apr. 30,1987). 
In fact, the Senate C om m ittee R eport specifically 
references the existence of the du ty  to bargain  in 
unilateral change situations: “ W here agency m anage­
m ent proposes to change established personnel policies, 
the exclusive representative m ust be given notice of the 
proposed changes and an opportunity  to negotiate over 
such proposals to  the ex ten t they are negotiable.” 26

I t  is sim ilarly well established th a t if it subsequen t­
ly can be shown th a t the employer changed working 
conditions b u t refused to bargain over m atte rs  which 
were properly w ithin the bargaining obligation, the 
employer has com m itted an unfair labor practice. See, 
e.g., N L R B  v. Katz, 369 U.S. 736 (1962) (private sector); 
F L E A  v. Social Security  Adm inistration, 753 F.2d 156 
(D.C, Cir. 1985) (federal sector). As th is Court s ta ted  
in N L R B  v. Katz, supra, 369 U.S. a t 744, unilateral 
change in conditions of em ploym ent by m anagem ent 
“ plain ly  fru stra te fs] the  s ta tu to ry  ob jective of 
estab lish ing  working conditions through bargain ing .” 
As a consequence, the Court held “ th a t an em ployer’s 
unilateral change in conditions of em ploym ent under 
negotiation is sim ilarly a violation of § 8(a)(5), for it is 
a circum vention of the du ty  to negotiate which frus­
tra tes  the objectives of § 8(a)(5) much as does a flat

26 S. Rep. No. 95-969, 95th Cong., 2d Sess. 104 (1978), reprinted 
in Legis. Hist, a t 764. For discussion of the operation of this same 
principle under the Executive Order program which preceded the 
S tatute, see page 37, infra.

91



3 0

refusal.” N L R B  v. Katz, supra, 369 U.S. a t 743 (foot­
note om itted). See also First N ational M aintenance  
Corp. v. N L R B , 452 U.S. 666, 674-675 (1981) (“ A 
unilateral change as to  a subject within [the m andatory 
du ty  to bargain] violates the s ta tu to ry  du ty  to bargain 
and is sub ject to the  B oard’s rem edial order.” ).

Hence, while Congress provided a procedure in Sec­
tion 7117(b) of the S ta tu te  for use with respect to resolv­
ing compelling need issues (just as Congress provided 
a procedure in Section 7117(c) for use w ith respect to 
resolving o ther negotiability issues), there is no indica­
tion in the S ta tu te  or in its legislative history th a t Con­
gress intended either of these procedures to foreclose 
resolution of defenses of nonnegotiability, including 
compelling need issues, in unilateral change unfair labor 
practice cases. Indeed, Aberdeen has not d isputed th a t 
negotiability  issues th a t are otherw ise resolved under 
the Section 7117(c) procedure can appropriately be 
resolved in unilateral change unfair labor practice cases 
w hen th e y  a r is e  as ag en cy  d e fen se s  in th e  
case.27 N othing in the legislative h istory  indicates 
th a t Congress intended the S ta tu te  to depart from this 
practice in those situa tions where the em ployer’s par­
ticular defense of nonnegotiability involves an asser­
tion th a t an agency regulation bars bargaining, as op­
posed to an assertion, for example, th a t  a governm ent­
wide regu lation  or m anagem en t’s nonnegotiable 
au thority  under Section 7106 bars bargaining.

27 Furtherm ore, an agency may assert the kinds of negotiabil­
ity issues otherwise resolved under both Section 7117(b) and Sec­
tion 7117(c) procedures as alternative affirm ative negotiability 
defenses in unilateral change unfair labor practice cases. E.g., 
Department o f the Navy, Washington, D C. and Department o f 
the Navy, U.S. Naval Supply Center, Oakland, California, 25 
F.L.It.A. (No. 81) 972 (Feb. 27, 1987); Department o f the A ir Force,- 
Eielson A ir Force Base, Alaska, 23 F.L.It.A. (No. 83) 605 (Oct. 16, 
1986).

92



31

M oreover, the A u th o rity ’s regulations specifically 
give effect to th is  principle. The A uthority , a t its in­
ception (see 45 Fed. Reg. 3484 (1980)), prom ulgated 
rules which address how negotiability  issues can be 
resolved when they arise in unilateral change unfair 
labor practice cases. The A uthority  adopted pro­
cedures which recognize a union’s righ t either: (1) to 
seek resolution of the en tire  d ispute, including the 
negotiability issues, in the  unfair labor practice forum; 
or (2) to seek initial and separa te  resolution of the 
negotiability  issues in the negotiability  appeal forum. 
5 C.F.R. 2423.5 and 2424.5 (Pet. App. 6a, 10a).

In keeping w ith these regulations, the A uthority  has 
consistently  resolved as p a r t of the unilateral change 
unfair labor practice case any compelling need issues 
necessary for disposition of the case. A part from the 
Fourth  C ircuit’s decisions in th is case (Pet. App. 16a) 
and in Fort B elvoir  (Pet. App. 52a-69a), of the 85 
A uthority  decisions (see page 26, supra) th a t counsel 
for the A uthority  have identified as addressing an 
employer agency’s contention th a t an agency regula­
tion should be found to have a compelling need so as 
to bar bargaining, 12 decisions resolved the compell­
ing need issue as p a rt of an unfair labor practice 
case.28 In  none of these 12 cases has the employer

28 See U.S. Department of the Treasury, 27 F.L.R.A. (No. 102) 
919 (June 29, 1987); Department of Transportation, 26 F.L.R.A. 
(No. 32) 256 (Mar. 17, 1987); United States Department of Defense, 
Department of the Army, McAlester Army Ammunition Plant, 26 
F.L.R.A. (No. 20) 177 (Mar. 13, 1987); Department of the Navy, 
Washington, D.C. and Department of the Navy, U.S. Naval Supply 
Center, Oakland, California, 25 F.L.R.A. (No. 81) 972 (Feb. 27, 
1987); Department of the Interior, Washinqton, D.C. and Bureau 
of Reclamation, Washinqton, D.C. and Bureau of Reclamation, 
Mid-Pacific Region, 25 F.L.R.A. (No. 6) 91 (Jan. 9, 1987); Depart­
ment of the Army, Fort Greely, Alaska and Department of the

93



32

agency sought judicial review with regard to the pro­
priety  of the A u th o rity ’s having resolved the compell­
ing need issue as p a rt of the unfair labor practice 
case. And in none of these cases has the employer 
agency sought judicial review with regard to the m erits

Army, 172d Infantry Brigade (Alaska), Fort Richardson, Alaska 
and Department of the Army, Headquarters, U.S. Army Forces 
Command, Fort McPherson, Georgia and Department of the Ar­
my, The Pentagon, Washington, D.C., 20 F.L.R.A. (No. 105) 858 
(Ocl. 31, 1986); Department of the Air Force, Eielson Air Force 
Base, Alaska, 23 F.L.R.A. (No. 83) 605 (Oct. 16, 1986); Department 
of Health and Human Services, Office of the Secretary, Head­
quarters, 20 F.L.R.A. 175 (1985); Department of Health and 
Human Services, Washington, D.C. and Department of Health and 
Human Services, Region 7, Kansas City, Missouri, 16 F.L.R.A. 
288 (1984); Boston District Recruiting Command, Boston, 
Massachusetts and Commander, Fort Devens, Fort Devens, 
Massachusetts and 94th U.S. Army Reserve Command, Hanscom 
Air Force Base, Massachusetts and Department of the Army, 
Washington, D.C. and Department of Defense, Washington, D.C., 
15 F.L.R.A. 720 (1984); Harry Diamond Laboratories and Depart­
ment of the Army and Department of Defense, 15 F.L.R.A. 216 
(1984); and United States Marshals Service, 12 F.L.R.A. 650(1983).

See also Department of the Air Force, Lowry Air Force Base, 
Denver, Colorado, 22 F.L.R.A. (No. 47) 464 (July 9, 1986) (while 
not necessary to the A uthority’s holding, the A uthority reaffirm­
ed the principle th a t compelling need determ inations may ap­
propriately he decided in an unfair labor practice proceeding); 
Federal Deposit Insurance Corporation, Headquarters, 18 F.L.R.A. 
768 (1985) (same).

Two of the 85 decisions resolved compelling need issues in the 
context of A uthority decisions on exceptions to arbitral awards, 
rendered pursuant to Section 7122(a) of the S tatu te . 5 U.S.C. 
7122(a). Lexington-Blue Grass Army Depot, Lexington, Kentucky 
and AFGE, Local 894, 24 F.L.R.A. (No. 6) 50 (Nov. 17, 1986); and 
Department of the Air Force, Flight Test Center, Edwards Air 
Force Base, California and Interdepartmental Local 3854, AFGE, 
21 F.L.R.A. (No. 61) 445, 453-454 (Apr. 24, 1986). In each case 
the A uthority resolved the employer agency’s assertion th a t the 
arbitral award was inconsistent with an agency regulation for 
which there was a compelling need.

94



33

of the A u th o rity ’s resolution of the  particu lar compell­
ing need issue (which in each case was resolved against 
the agency’s position).

The decision of the court in Fort Belvoir, s ta ting  prin­
cipally th a t  the  language of Section 7117(a)(2) 
establishes a “ condition precedent’’ (Pet. App. 60a), 
overlooks the principle th a t, regardless of the natu re  
of an agency’s negotiability defense, an agency breaches 
the “ continuing obligation” to bargain  whenever it 
unilaterally  changes conditions of em ploym ent and, in 
so doing, refuses to  bargain over a m a tte r th a t  subse­
quently can be shown to have been w ithin the du ty  to 
bargain. However, exam ination of the legislative 
h istory  reveals no t one com m ent in a congressional 
report nor one com m ent from a m em ber of Congress 
which supports the cou rt’s conclusion. If Congress in­
tended such a m arked departu re  from basic precepts 
of labor law, there should be some indication from Con­
gress th a t such a departu re  is intended. See Bureau 
o f Alcohol, Tobacco and Firearms v. F L R A , supra, 464 
U.S. a t 103-104, 107 (1983). Given the absence of any 
legislative h isto ry  supporting  the co u rt’s view of the 
S ta tu te , the  conclusion of the court below finding im­
permissible the A uthority’s construction of the S ta tu te  
is, we subm it, sim ply wrong. See Chevron v. N atural 
Resources D efense Council, 467 U.S. 837, 842-845 
(1984); D efense L ogistics A g en cy  v. F L R A , supra, 754 
F.2d a t 1013-1014.29

29 The A uthority 's  construction of the S ta tu te  gives effect to 
Congress’ in ten t to continue the settled law with regard to the 
application of the duty  to bargain over negotiable m atters when 
the agency seeks to change working conditions. Thus, the 
A uthority’s construction of the S ta tu te  should be upheld as an 
expression of this intent. See Chevron v. Natural Resources 
Defense Council, supra, 467 U.S. a t 842-843.

95



3 4

The court in Fort Belvoir  also erred when it s ta ted  
th a t the processing of a compelling need issue in a 
unilateral change unfair labor practice case would im­
properly d isregard  the several features of the Section 
7117(b) procedure which are different from an unfair 
labor practice proceeding. As the court noted in Fort 
Belvoir (Pet. App. 67a-68a), the Section 7117(b) pro­
cedure presents d isputes directly to the A uthority , the 
FL ltA  General Counsel is not a party , and a hearing 
is discretionary  (but if a hearing is held the agency is 
a necessary party). However, the court overlooked the 
fact th a t the various features in Section 7117(b) which 
are not p resent in unfair labor practice proceedings, are, 
with one exception, also features of the Section 7117(c) 
procedure for resolving all other kinds of allegations of 
nonnegotiability .30 And neither Aberdeen nor the 
decision of the court below suggests th a t the A uthority

As this Court has stated, the A uthority is entitled to “con­
siderable deference when it exercises its ‘special function of ap­
plying the general provisions of the (Statute) to the complexities’ 
of federal labor relations." Bureau o f Alcohol, Tobacco and 
Firearms v. FLU A, supra, 464 U.S. a t 97 (citation omitted). 
Moreover, the consistency of the A uthority’s decisional precedent 
in this area (see note 28, supra) is a further reason why the Court 
should be particularly reluctant to hold th a t the Authority s in­
terpretation of the S ta tu te  is impermissible. See Pattern M akers' 
League o f North America v. NLRB, 473 U.S. 95, 115 (1985).

The Section 7117(c) procedure is expedited (7117(c)(6)) and 
disputes under it are presented directly to the Authority; the 
FLltA General Counsel is not a party  (7117(c)(5)); and a hearing 
is discretionary (7117(c)(5)). The Authority processes both Section 
7117(b) compelling need negotiability disputes and Section 7117(c) 
negotiability disputes under the same procedures set out at 5 
C.F.R. 2424.1—2424.10 (Pet. App. 7a-14a). For a discussion of 
these procedures, see A FGE  v. FLRA, 778 F.2d 850, 852-853 (D.C. 
Cir. 1985).

96



35

contravenes its S ta tu te  when it resolves the negotiabil­
ity  issues th a t would otherw ise be processed under the 
Section 7117(c) procedure when they are raised as 
defenses in unilateral change unfair labor practice 
cases.* 31

The only difference between the Section 7117(b) procedure and 
the Section 7117(c) procedure is th a t under the Section 7117(b) 
procedure, in the event the A uthority exercises its discretion and 
holds a hearing, the agency is a necessary party, whereas there 
is no mention of the agency being a necessary party  to any hear­
ing held under the Section 7117(c) procedure. Defense Logistics 
Agency v. FLRA, supra, 754 F.2d at 1011 n.13. The agency’s 
participation in a Section 7117(b) hearing may have its antecedents 
in the Executive Order. There, agencies were specifically en­
couraged to waive the assertions by local management that agency 
regulations barred bargaining (see 1975 Council Report a t 39-40, 
reprinted in Legis. Hist, a t 1309-1310 (App. 7a-8a, infra)). Fur­
ther, in order to ensure th a t an agency head had been given notice 
and an opportunity to waive such an assertion of nonnegotiabil­
ity, the Council only accepted a compelling need negotiability ap­
peal for processing if the union had specifically asked the agency 
head for an exception to th a t particular bar to bargaining and the 
agency head either did not respond or refused to grant the excep­
tion (5 C.F.R. 2411.22(b) (1978)). Under the S tatu te , the require­
ment th a t an agency head be a party  to any discretionary hear­
ing under Section 7117(b) would similarly ensure th a t the agency 
head has an opportunity to waive the regulation as a bar to 
bargaining (see Section 7117(b)(2)(A)).

31 The Authority resolves whether an agency regulation is a bar 
to bargaining in an unfair labor practice case when management, 
in the context of a m anagement-initiated change in conditions of 
employment, raises such a regulation as an affirmative defense 
to an alleged breach of the bargaining obligation. For example, 
management may assert either th a t the change was required by 
a newly-issued regulation for which there is a compelling need (e.g., 
Department of the Interior, Washington, D C. and Bureau of 
Reclamation, Washington, D C. and Bureau of Reclamation, 
Mid-Pacific Region, 25 F.L.R.A. (No. 6) 91 (Jan. 9, 1987)), or

97



36

Finally, regardless w hether the Section 7117(b) pro­
cedure or the unfair labor practice procedure is used to 
determ ine the m erits of an assertion of a compelling 
need for an agency regulation, the outcome of th a t 
determ ination would be the same. In either forum, the 
m erits are decided by the A uthority; the agency’s 
burden of proof in dem onstrating a compelling need for 
the regulation is the same;32 access to judicial review 
is the same; and if a compelling need were found, the 
agency would be under no obligation to bargain over 
proposals which conflict w ith the regulation.

management may assert that, whatever the reason for the change, 
an agency regulation for which there is a compelling need pre­
cluded bargaining over certain union proposals which the union 
offered in response to the change {e.g., Department o f Health and 
Human Services, Washington, D.C. and Department o f Health and 
Human Services, Region 7, Kansas City, Missouri, 16 F.L.R.A. 
288 (1984); United S ta tes Marshals Service, 12 F.L.It.A. 650 
(1983)). In either event, the A uthority is simply resolving the 
employer agency’s defense to the alleged unfair labor practice, just 
as the A uthority would resolve such a defense if it involved a 
negotiability issue otherwise resolved under Section 7117(c) of the 
S ta tu te  (i.e., that, when managem ent changed conditions of em­
ployment, a government-wide regulation was a bar to bargaining 
because the union sought to bargain over m atters which would 
bring about an inconsistency with the regulation). Moreover, it 
should be noted th a t under the A uthority’s practice, and contrary 
to the court’s statem ent in Fort Belvoir (Pet. App. 62a), the Sec­
tion 7117(b) procedure has not been “ regulated out of existence.” 
See discussion at page 31, supra, noting th a t only 12 of the 85 
decisions identified as resolving compelling need disputes were un­
fair labor practice decisions.

See, e.g., Department o f Health and Human Services, Office 
of the Secretary, Headquarters, 20 F.L.R.A. 175 (1985) (unfair labor 
practice case); A FOE, Local 2875 and Department o f Commerce, 
National Oceanic and Atmospheric Administration, National 
Marine Fisheries Service, Southeast Fisheries Center, Miami 
Laboratory, Florida, 5 F.L.R.A. 441,446 (1981) (negotiability case).

9 8



37

C. The A u th o rity ’s practice of resolving w hether 
there is a compelling need for an agency regula­
tion, when th a t issue arises as an agency defense 
in a un ilateral change unfair labor practice case, 
is consisten t w ith p re-S tatu te  practice

A s acknowledged by the court in Fort Delvoir (Pet. 
App. 64a), and as found by the D.C. C ircuit in D efense  
Logistics A g en cy  v. F L R A , supra, 754 F.2d a t 1008, 
the A u th o rity ’s construction of the S ta tu te , in allow­
ing for the unified processing of any compelling need 
issues raised in a unilateral change unfair labor prac­
tice case, is consistent with established Executive Order 
practice which predated  the S ta tu te .

U nder the Executive O rder program , the obligation 
of an agency to  negotia te  prior to m aking changes in 
employee working conditions was discussed in the 1975 
Council R eport which s ta ted  th a t the “ [Executive] 
Order does require adequate notice and an opportunity  
to negotiate  prior to changing established personnel 
policies and practices and m a tte rs  affecting working 
conditions during the term  of an existing agreem ent 
unless the issues thus raised are controlled by current 
contractual com m itm ents, or a clear and unm istakable 
waiver is present.” 1975 Council Report a t 41, reprinted 
in Legis. H ist, a t 1312 (App. 12a, infra). In the same 
1975 Council Report, a unified procedure was propos­
ed for processing alleged breaches of th is bargaining 
obligation. 1975 Council R eport a t 46-48, reprinted in 
Legis. H ist, a t 1323-1327 (App. 14a-18a, infra).

The 1975 Council R eport specifically proposed th a t 
the D epartm ent of Labor’s A ssis tan t Secretary of 
Labor for Labor-M anagem ent Relations (the office 
charged w ith initially resolving federal sector unfair 
labor practice com plaints under the Executive Order) 
be authorized to decide any negotiability issues

99



38

necessary to the resolution of such cases even though 
there may not he existing precedent from the Federal 
Labor Relations Council (the body which heard, among 
other things, negotiability appeals) to guide the A ssist­
an t Secretary.33 In this connection, the Report stated  
th a t giving th is additional au thority  to the A ssistan t 
Secretary would avoid “ iu]nnecessary additional steps 
in the adjudicatory  process [which] would be required 
if such negotiability  issues were b rought to the Coun­
cil for initial adjudication.” 1975 Council Report a t 47, 
reprinted in Legis. H ist, a t 1325 (App. 17a, infra). 
Moreover, the 1975 Council Report specifically rejected 
‘‘the a lternative of requiring the A ssis tan t Secretary 
to forward negotiability issues to the Council for deter­
m ination when they appeared in the course of an un­
fair labor practice proceeding thus deferring his deci­
sion in the interim  until the Council could resolve the 
issues concerned.” 1975 Council Report a t 48, reprinted 
in Legis. H ist, a t 1326 (App. 17a, infra).34 As the 
resu lt of th is Council Report, the unified approach to

33 As stated  in the 1975 Council Report a t 47, reprinted in 
Legis. Hist, at 1324 (App. 16a, infra):

The amendments which we propose would affirm the author­
ity of the A ssistant Secretary, in the context of certain unfair 
labor practice cases, to resolve negotiability issues, even though 
there is no existing Council precedent to guide him, so long as 
these issues do not arise in connection with negotiations be­
tween the parties but rather as a result of a respondent’s alleged 
refusal to negotiate by unilaterally changing an established per­
sonnel policy or practice, or m atter affecting working condi­
tions. [Emphasis added.)
3‘' In rejecting this alternative, the 1975 Council Report a t 48, 

reprinted in Legis. Hist, at 1326-1327 (App. 17a-18a, infra) stated:

Where negotiability issues arise in the context of such unfair 
labor practice proceedings they are often inextricably inter­
twined with disputed issues of fact which m ust be resolved

100



resolving negotiability  issues as p a rt of the unilateral 
change unfair labor practice case in which they arose 
was incorporated into the Executive O rder program  in 
section 11(d) of Executive O rder 11491.* 35

A t the sam e tim e th a t the 1975 Council R eport in­
troduced the unified approach to resolving negotiabil­
ity  issues as p a r t of the un ilateral change unfair labor 
practice case in which they arose, the R eport also re­
moved agency regulations as a general bar to negotia­
tions over inconsisten t proposals. Instead , as d is­
cussed a t pages 20-22, supra, the compelling need stand­
ard was introduced, such th a t only those agency regula­
tions for which a compelling need exists (under criteria 
established by the Council), as opposed to all agency 
regulations, were to bar negotiations w ith respect to 
a conflicting proposal. 1975 Council R eport a t 37,

in order to arrive a t a conclusion concerning the motivation of 
the parties. Such disputed issues of fact are best resolved 
through the adversary process of a forma! hearing. For this 
reason, and because of the delays attendan t in such a referral 
procedure, the Council does not believe tha t such an alternative 
is feasible or appropriate.
35 Section 11(d) provided:

(d) If, as the result of an alleged unilateral change in, or 
addition to, personnel policies and practices or m atters affect­
ing working conditions, the acting party  is charged with a 
refusal to consult, confer or negotiate as required under this 
order, the A ssistan t Secretary may, in the exercise of his 
authority  under section 6(a)(4) of the order, make those deter­
minations of negotiability as may be necessary to resolve the 
m erits of the alleged unfair labor practice. In such cases the 
party  subject to an adverse ruling may appeal the A ssistant 
Secretary’s negotiability determ ination to the Council.

Executive Order 11838 (1975), 3 C.F.R. 957, 959 (1971-75 comp.), 
reprinted in Legis. Hist, a t 1336, 1339.

101



4 0

reprinted in Legis. H ist, a t 1304 (App. la, in­
fra).36 M oreover, the 1975 Council R eport also in­
troduced a d irect appeal procedure for determ ining 
w hether an agency’s regulation was nonnegotiable 
under the compelling need criteria. See note 9, supra.

Thus, ever since the tim e th a t the Executive Order 
first provided th a t agency regulations for which no com­
pelling need ex ists  did not preclude collective bargain­
ing, resolution of such a compelling need issue could 
be processed either: (1) in a direct negotiability appeal
procedure to the Federal Labor R elations Council; or 
(2) in the case of a d ispute  over an agency’s alleged 
breach of the bargaining obligation (when m anagem ent 
changes conditions of em ploym ent and where m anage­
m ent defends against the alleged breach by asserting  
bargaining was barred by an agency regulation for 
which a compelling need existed), in an unfair labor 
practice procedure before the D epartm ent of Labor’s 
A ssis tan t Secretary of Labor for Labor-M anagem ent 
Relations. Accordingly, when Congress established in 
the S ta tu te  a negotiability  appeal procedure for com­
pelling need issues, Congress simply continued th a t pro­
cedure from Executive O rder practice, the sam e E x­
ecutive O rder practice which also allowed for the pro­
cessing of compelling need issues in unilateral change 
unfair labor practice cases.

Viewed in th is context, and con trary  to  the conclu­
sion of the court in Fort Beluoir  (Pet. App. 64a), Con­
gress’ continuation in Section 7117(b) of the S ta tu te  of 
a separa te  negotiability  appeal procedure for compell­
ing need issues is not a rejection of the pre-S tatu te prac­
tice of unified processing of compelling need issues in

:,fiThis change was incorporated into Executive Order 11491, 
as amended, by Executive Order 11838 (1975), 3 C.F.R. 957, 960 
(1971-75 comp.), reprinted in Legis. Hist, a t 1336, 1339.

102



4 1

unilateral change unfair labor practice cases. I t  no 
more indicates a rejection of p re-S tatu te  practice than  
does C ongress’ continuation in Section 7117(c) of the 
S ta tu te  of a separate  negotiability appeal procedure for 
resolving o ther negotiability  issues. And as noted, 
neither Aberdeen nor the co u rt’s decision in Fort 
Beluoir suggests th a t  the A uthority  contravenes its  
S ta tu te  when it  resolves the negotiability  issues (tha t 
would otherwise be processed under the Section 7117(c) 
procedure) when they are raised as defenses in unilateral 
change unfair labor practice cases.

The court in Fort Beluoir also erred in viewing E x­
ecutive Order 12107 (Dec. 28,1978), 3 C.F.R. 264 (1979), 
as bu ttressing  its conclusion th a t Congress rejected the 
Executive O rder practice of allowing compelling need 
issues to be resolved in un ilateral change unfair labor 
practice cases (Pet. App. 66a). Executive Order 12107 
was issued to govern the federal labor-management rela­
tions program  for the 10-day period betw een Jan u ary  
1, 1979 (the date  the Federal Labor Relations A uthor­
ity came into being as a resu lt of Reorganization Plan 
No. 2 of 1978)37 and Jan u a ry  11, 1979 (the date  the 
S ta tu te  took effect).38 Executive Order 12107 was the 
housekeeping m easure which reassigned Executive 
Order ta sk s  from the expiring Federal Labor Relations 
Council and from the A ssis tan t Secretary  of Labor for 
Labor-M anagem ent Relations to the newly created and 
single entity , the Federal Labor Relations A uthority .39

While Executive O rder 12107 did not specify th a t 
negotiability issues could be decided as p a rt of

37 II.It. Doc. No. 95-341, 95th Cong., 2d Sess. (1978), reprinted 
in Legis. Hist, a t 630.

38 Pub. L. No. 95-454, § 907; 92 S tat. 1227 (1978).
39H.R. Rep. No. 95-1396, 95th Cong., 2d Sess. 5 (1978),

reprinted in Legis. Hist, a t 663.

103



42

unilateral change unfair labor practice cases (as E x ­
ecutive Order 11491, as amended, did in section 6(a) and 
section 11(d)), there was no longer a need for the E x ­
ecutive O rder to do so. Form erly, and as discussed at 
pages 37-39, supra, under Executive Order 11491 the 
A ssistan t Secretary’s jurisdiction to resolve negotiabil­
ity issues in unilateral change unfair labor practice cases 
was an exception to the Council’s initial jurisdiction 
over all negotiability  disputes. See 1975 Council 
R eport a t 46-48, reprinted in Legis. H ist, a t 1324-1327 
(App. 14a-18a, infra). Therefore, th a t jurisdiction 
needed to be spelled out. However, w ith the advent 
of Reorganization Plan No. 2, which gave the A uthori­
ty initial jurisdiction over both  negotiability  and un­
fair labor practice d isputes, there was no longer any 
need to specify such separate  jurisdictional authority .

Consequently, the A u th o rity ’s in terpreta tion  of the 
S ta tu te  a t issue in th is case is consisten t w ith pre- 
S ta tu te  practice. M oreover, Section 7135(b) of the 
S ta tu te  specifically recognizes the relevance and the im­
portance of consistency with p re-S tatu te practice when 
it specifies, “ [p]olicies, regulations, and procedures” 
under the Executive O rder rem ain in force ‘‘until re­
vised or revoked by the President, or unless superseded 
by specific provisions of [the S ta tu te ].” 5 U.S.C. 
7135(b). Accordingly, consistency with this Executive 
O rder practice is fu rther support for affirm ing the 
A u th o r i ty ’s c o n s tru c tio n  of th e  S ta tu te .  See 
FederaUPostal/Retiree Coalition v. Devine, 751 F.2d 
1424, 1426 and n .l (D.C. Cir. 1985).

D. C onsiderations of public policy support the 
unified processing of a compelling need issue in 
the  unfair labor practice case in which it arises

Finally, as the A uthority  s ta ted  in its decision (Pet. 
App. 25a-26a), it is in the in te rest of the efficient and

104



43

effective adm in istra tion  of the S ta tu te  th a t all issues 
which arise in an unfair labor practice d ispu te  be re­
solved in th a t unfair labor practice proceeding. Unified 
processing of a compelling need issue in the unfair labor 
practice case in which it arises is responsive to “ con­
cern over duplicative proceedings and delay and pre­
judice to governm ental em ployees.” 40 The dispute 
resolution process is stream lined and shortened ,41 
which, as the A uthority  noted, effectuates C ongress’ 
goal to facilitate and prom ote the collective bargain­
ing process by providing for the resolution of all rele­
v an t issues in one proceeding, thereby obviating the 
delay inherent in two separa te  and consecutive pro­
ceedings. In  addition, employees are afforded a forum, 
and access to a rem edy, th a t can provide some form of 
re troactive relief in appropria te  cases.

There are no draw backs to processing a compelling 
need issue in the unfair labor practice case in which it 
arises. W hen the  A u th o rity  concludes th a t  an 
agency’s refusal to bargain  was justified  by an agency 
regulation for which there is a compelling need, resolv­
ing all the issues in one forum obviously does not 
adversely affect the agency. Furtherm ore, regardless 
of w hether the compelling need issue is processed as 
p a rt of a un ilateral change unfair labor practice case, 
agencies rem ain able to issue new regulations and they 
rem ain able to enforce, as a bar to  collective bargain­
ing, any regulation which Congress intended to bar col­
lective bargaining (tha t is, any regulation for which the 
agency can dem onstrate  a compelling need).42

40 Defense Logistics Agency  v. FLRA, supra, 754 F.2d at 1014 
(footnote omitted).

41 See id. a t 1012.
42 Moreover, in Section 7116(a)(7) of the S ta tu te  (5 U.S.C. 

7116(a)(7)), C ongress specified th a t where newly issued 
government-wide and agency regulations (including those for 
which a compelling need exists) conflict with a pre-existing term

105



4 4

On the o ther hand, in situations where the A uthor­
ity  finds no compelling need for the regulation a t issue, 
the agency is not im properly affected.43 In th is case, 
for example, Aberdeen was only ordered to bargain pro­
spectively and to post appropriate  notices.44 B ut 
even an order to rescind a unilateral change over which

of a collective bargaining agreement, the collective bargaining 
agreem ent provision is param ount.

43 See Defense Logistics Agency  v. FLRA, supra, 754 F.2d at 
1013.

44 The Authority’s decision only ordered the agency to bargain, 
not to agree, on the proposal; the A uthority did not decide the 
merits of the proposal. And, “ [i]n collective bargaining, govern­
ment managers are presumably competent to look out for govern­
ment in terests.” Department o f Defense v. FLRA, supra, 659 
I1’.2d at 1157. See also United S ta tes Naval Ordnance Station  v. 
FLRA, 818 F.2d 545, 551 n.7 (6th Cir. 1987).

I f the parties, in the course of their collective bargaining, reach 
an impasse, either party may request the assistance of the Federal 
Service Im passes Panel as provided in Section 7119 of the 
S ta tu te . The Im passes Panel is comprised of seven presidential 
appointees, selected “ solely on the basis of fitness to perform the 
duties and functions involved, from among individuals who are 
familiar with Government operations and knowledgeable in labor- 
managem ent relations.” 5 U.S.C. 7119(c)(2). The Im passes 
Panel is empowered to take whatever action is necessary to resolve 
an impasse, including ordering parties to agree to specific proposal 
language. See Council o f Prison Locals v. Brewer, 735 F.2d 1497 
(D.C. Cir. 1984). When issuing such an order, decisions of the Im­
passes Panel indicate th a t the reasonableness of any proposal at 
issue will be considered in determ ining what contract language 
will be imposed. See Veterans Adm inistration Medical Center, 
Tampa, Florida v. FLRA, 675 F.2d 260, 265 n.9 (11th Cir. 
1982). See also Department of the Army, Toole Arm y Depot, Toole, 
Utah and Local 2185, AFG E, Case No. 83 FSIP  62 (Jan. 6, 1984) 
(Im passes Panel resolved impasse over how much adm inistrative 
leave should be extended to employees donating blood).

106



45

there was a du ty  to bargain is simply one well-accepted 
way in which a breach in the collective bargaining 
obligation is rem edied.45

Accordingly, con trary  to the conclusion of the court 
below, unified processing of compelling need issues in 
unilateral change unfair labor practice cases does not 
ham string  or im properly res tric t the flexibility of an 
agency. Instead , the various policy considerations 
supporting the A uthority ’s construction of the S ta tu te  
prom pted the D.C. Circuit to conclude th a t the A uthor­
ity ’s construction is “ no t only a perm issible reading of 
the S ta tu te , b u t also a reasonable one, in the tru est 
sense—namely, th a t  the A uthority  had good reasons 
for reading the S ta tu te  in th a t w ay.” D efense  
Logistics A gency  v. F LR A , supra, 754 F.2d a t 1014.46

45 See Decision on Petition for Am endm ent o f Hides, 23 
F.L.R.A. (No. 57) 405, 406-408 (Sept. 23, 1986), petition for review 
filed sub nom. National Labor Relations Board Union, et al. v. 
FLRA, No. 86-1624 (D.C. Cir. Nov. 17, 1986). See also, e.g.. 
Department o f the Army, Fort Greely, A laska and Department 
of the Arm y, 172d Infantry Brigade (Alaska), Fort Richardson, 
Alaska and Department o f the Army, Headquarters, U.S. A rm y  
Forces Command, Fort McPherson, Georgia and Department of 
the Army, The Pentagon, Washington, D.C., 23 F.L.R.A. (No. 105) 
858, 867 (Oct. 31, 1986).

4r> While the court below did not address the merits of the 
A uthority’s resolution of the compelling need issue in this case, 
we note th a t the m erits of th a t issue were properly resolved by 
the Authority. The Authority correctly concluded that Aberdeen 
had failed to sustain its burden of establishing, in accordance with 
criteria in 5 C.F.R. 2424.T 1, a compelling need for the regulations 
that were inconsistent with the union’s proposals. The A uthor­
ity noted (Pet. App. 27a) th a t Aberdeen argued th a t there was 
a compelling need for the regulations because they were essential 
to meet its objective in curtailing operations, which was to

107



46

CONCLUSION

The judgm en t of the court of appeals should be 
reversed, and the case should be remanded to th a t court 
w ith directions to conduct fu rther proceedings consis­
ten t w ith the C ourt’s opinion.47 

Respectfully subm itted .

R u t h  E . P e t e r s  *
Solicitor

W il l ia m  E . P e r s in a
D epu ty  Solicitor

A r t h u r  A . H o r o w it z
A ssocia te  Solicitor

R o b e r t  J . E n g l e h a r t  
A ttorney

* Counsel of Record

N o v e m b e r  1987

conserve energy. However, the A uthority properly found tha t 
this argum ent failed to establish how the granting of ad­
m inistrative, rather than annual, leave in any way affected Aber­
deen’s s ta ted  objective of conserving energy (Pet. App. 
27a-28a). See also NAGE, Local R14 62 and U.S. Army Dugway 
Proving Ground, Dugway, Utah, 26 F.L.R.A. (No. 7) 59 (Mar. 6, 
1986) (compelling need not found under 5 C.F.R. 2424.11 because 
dem onstration of monetary savings alone is not sufficient to 
establish th a t a regulation is essential, as distinguished from 
helpful or desirable).

47 “ I authorize the filing of this brief. Charles Fried, Solicitor 
General.”

108



No. 86-1715

M %  ̂ uiirrmr (ttnurt uf tlyi? MnlUh
O c t o b e r  T e r m , 1987

F e d e r a l  L a b o r  R e l a t io n s  A u t h o r it y ,
PETITIONER

V.

A b e r d e e n  P r o v in g  G r o u n d , 
D e p a r t m e n t  o e  t h e  A r m y

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF A PPEALS 

FOR THE FOURTH CIRCUIT

B R IE F  FOR T H E  R E SPO N D E N T

C h a r l e s  F ried  
Solicitor General

R i c h a r d  K . W il l a r d

Assistant A ttorney General

W i l l i a m  K a n t e r  
D e b o r a h  R u t h  K a n t

Attorneys

Department of Justice 
Washington, D.C. 20530 
(202) 033-2217

109



QUESTION PRESENTED

The Federal Service Labor-M anagem ent Relations 
S tatu te , 5 U.S.C. (& Supp. IV ) 7101 et seq., p ro­
vides th a t a  federal agency’s duty  to bargain  w ith 
its employees shall extend to a m a tte r th a t is the 
subject of an agency regulation only if the Federal 
Labor Relations A uthority  (the  A uthority ) has de­
term ined, under 5 U.S.C. 7117(b), th a t there is no 
“compelling need” fo r the regulation a t  issue. The 
question presented in th is case is w hether the pro­
cedure set fo rth  in 5 U.S.C. 7117(b) is the only 
means by which the compelling need fo r an agency 
regulation m ay be challenged, or w hether the A u­
thority  also has the power to resolve the compelling 
need issue in an u n fa ir  labor practice proceeding 
under 5 U.S.C. 7118.

110
( i)



TA BLE OF CONTENTS

Opinions below ............................................................................. 1

Jurisd iction  ............................................................................—  2

S ta tu to ry  provisions involved ........................ ...... ........ ......  2

Statem ent ...................................................................................... 3

Sum m ary of a rg u m e n t..............................................................  15

A rgum ent:

Section 7117(b) provides the only procedure fo r 
challenging the compelling need fo r a regulation 
issued by an agency or p rim ary  national subdivi­
sion ...............................      19
A. The language of the  s ta tu te  plainly indicates

th a t Section 7117(b) is the only procedure for 
challenging compelling need ......      19

B. The decision to m ake Section 7117(b) the only
procedure fo r challenging compelling need 
serves im portan t purposes ...........................    26

C. The history  of T itle V II confirms th a t Section
7117(b) provides the exclusive procedure fo r 
challenging compelling need .....................................  30

D. P e titioner’s reliance on “considerations of pub­
lic policy” is m isplaced........................................ ......  41

Conclusion ........................................................... ....... ..... ........... 45

TA BLE O F A U TH O RITIES
Cases:

Aaron  V. SEC, 446 U.S. 680 (1980) ........... ........ . 20
AFGE  v. FIJI A :

715 F.2d 627 (D.C. Cir. 1 983)................ ........ . 39, 43
730 F.2d 1534 (D.C. Cir. 1984)............. ............... . 7, 27
778 F.2d 850 (D.C. Cir. 1985) ...............................  24, 40

AFGE, Local 1928 & Dep’t  of the Navy, 2 F.L.R.A.
451 (1980) ........................................................ ............ 28

(HI)

P a g e

111



IV

AFGE, Local 2670 & A rm y & A ir  Force Exchange
Service, 10 F.L.R.A. 71 (1982) ................................  28

AFGE, Social Security Local 8231 & Dep’t of 
Health & Human Services, Social Security
A dm ’n, 16 F.L.R.A. 47 (1984) ............. .................... 27

Association of Civilian Technicians, Montana A ir  
Chapter V. FLU A, 756 F.2d 172 (D.C. Cir.
1985)...-.......... ........ -........ -..............................................  7- 43

Bureau of Alcohol, 'Tobacco & Firearms V. FLRA,
464 U.S. 89 (1983) .... ................ -...........4 ,6 ,1 8 ,3 1 ,4 0 ,4 4

Califano V. Yamasaki, 442 U.S.- 682 (1979) ............ 22
Carter V. Kentucky, 450 U.S. 288 (1981) ................ -- 19
Consumer Product Safety Comm’n  V. GTE Syl-

vania, Inc., 447 U.S. 102 (1980) ........ ............-......  20
Defense Logistics Agency, 12 F.L.R.A. 412 (1983), 

a f fd  sub nom. Defense Logistics Agency  V.
FLRA, 754 F.2d 1003 (D.C. Cir. 1985) ................  12,30

Escoe v. Zerbst, 295 U.S. 490 (1 9 3 5 )............. .............  24
Farmers & Merchants Banks V. Federal Reserve

Bank, 262 U.S. 649 (1 9 2 3 )............................... -.......  24
Fedorenko V. United States, 449 U.S. 490 (1981).... 24-25 
FLRA  V. OPM, 778 F.2d 844 (D.C. Cir. 1985) .6, 9, 26, 39 
Galloway V. United Stales, 319 U.S. 372 (1943).... 24
Greyhound Corp. V. Mt. Hood Stages, Inc., 437

U.S. 322 (1978) ......................... ...... -..........................  20
INS  V. Cardoza-Fonseca, No. 85-782 (M ar. 9,

1987) ................................................................................ 20,25
Kissinger  V. Reporters Comm, for Freedom of the

Press, 445 U.S. 136 (1 9 8 0 )............................... ......  25
Lawrence County V. Lead-Deadwood School Dis­

trict No. 40-1 , 469 U.S. 256 (1 9 8 5 ).........................  25
Lehman V. Nakshian, 453 U.S. 156 (1981) .............  24,39
Library of Congress V. FLRA, 699 F.2d 1280 (D.C.

Cir. 1983)  ......... ....... ................................. .............. 7 ,40 ,41
National Fed’n of Fed. Employees, Local 1167 V.

FLRA, 681 F.2d 886 (D.C. Cir. 1982) ..................  24,39
National Fed’n of Fed. Employees, Local 1445 & 

Alabama A ir N at’l Guard, 16 F.L.R.A. 1094
(1984) ...................................................-.............. - .......... 28

National Federation of Federal Employees, Local
1669 v. FLRA, 745 F.2d 705 (D.C. Cir. 1984).... 4

C a ses— C o n t in u e d : r a g e

112



V

Cases-— C o n t in u e d : P a g e

N T E U  V. FLRA,  691 F.2d 553 (D.C. Cir. 1982).... 6
N T E U  & FDIC Corp., 14 F.L.R.A. 179 (1984)........  28
NTEU, Chapter 207 & FDIC Corp., 14 F.L.R.A.

698 (1984) ............. ....... ............................................ ..27-28,41
Rodriguez V. Compass Shipping Co., 451 U.S. 596

(1981) .............................. ........ .................. .................... 22
Russello V. United States, 464 U.S. 16 (1983)....... 25
Terre Haute & Indianapolis R.R. V. Indiana, 194

U. S. 579 (1904) ....... ................. ............... ...............  23
Thompson V. Roe, 63 U.S. (22 How.) 422 (I860).. 24
Transamerica Mortgage Advisors, Inc. V. Lewis,

444 U,S. 11 (1979) _______ __ ________ ____ ____  25
Turgeonv. FLRA, 677 F.2d 937 (D.C. Cir. 1982).. 22,29 
United States A rm y Engineer Center, Fort Belvoir

V. FLRA, 762 F.2d 409 (4th  Cir. 1985) ..14, 21, 24, 25, 30
United States V. Erika, Inc., 456 U.S. 201 (1982).. 25
United States  V. Thoman, 156 U.S. 353 (1895) ......  24

S tatutes and regulations:
Civil Service Reform  A ct of 1978, Pub. L. No. 95-

454, 92 S ta t. 1111 ........................................................  3
T itle VII, 5 U.S.C. (& Supp. IV ) 7101 et seq. 

(Federal Service Labor-M anagem ent Rela­
tions S ta tu te) ................... ................................... passim,

5 U.S.C. 7101 (b) .................................5, 40, 42, 43
5 U.S.C. 71 0 2 ...... ...................... ..................  4
5 U.S.C. 7103(a) (1 2 )...................... ........... 4
5 U.S.C. 7103(a) (14) „ ........................... . .4 ,7 , 17
5 U.S.C. 7105(a) (2) ( A ) - ( I ) ...........   5
5 U.S.C. 7 1 0 6 (a ).........      6 ,7
5 U.S.C. 7106(a) (2) ( A ) .......................   6
5 U.S.C. 7 1 0 6 (a ) (2 ) (B )  ..........................  6
5 U.S.C. 7106 (a) (2) (C) ................   6
5 U.S.C. 7 1 0 6 (a )(2 )(D )  ...........................  6
5 U.S.C. 7114 .......          4
5 U.S.C. 7116(a) ( 1 ) ................................. 11,14
5 U.S.C. 7116(a) ( 5 ) .............. .................. 4 ,11 ,14
5 U.S.C. 7116(b) (5) .......................   4
5 U.S.C. 7 1 1 7 ........................  passim
5 U.S.C. 7 1 1 7 (a ) .......................................   15

113



vt

5 U.S.C. 7 1 1 7 (a ) (1 ) ............................. 7 ,35
5 U.S.C. 7117(a) (2) 7, 11,16, 20, 21, 24, 36
5 U.S.C. 7117(a) (3) ...................................  7 ,43
5 U.S.C. 711 7 ( b ) ...................................passim
5 U.S.C. 7117(b) (1) ................................ 8 ,1 6 ,2 2
5 U.S.C. 7117(b) ( 2 ) ............................. 24
5 U.S.C. 7 1 1 7 ( b ) ( 2 ) ( A ) ...................     26,27
5 U.S.C. 7117(b) (3 ) ................................. 8, 23, 29
5 U.S.C. 7117(b) ( 4 ) .................... ..............  8 ,23
5 U.S.C. 7117 (c) ...... ................................... passim
5 U.S.C. 7117(c) ( 1 ) ................................... 23
5 U.S.C. 7118 ........................ 4, 5, 8, 14, 24, 29, 30
5 U.S.C. 7118(a) ( 1 ) .... ........ .............. 21
5 U.S.C. 7118(a) ( 3 ) ...................................  29
5 U.S.C. 7118(a) ( 6 ) ..................... ............. 29
5 U.S.C. 7 1 1 8 (a ) (7 ) .......................... 8, 29, 30, 43
5 U.S.C. 7 1 2 3 (a ) ................................   5
5 U.S.C. 7 1 2 3 (b ) ......................................  5

Exec. O rder No. 10,988, 3 C.F.R. 521 (1959-1963
comp.) ..............    4

Exec. O rder No. 11,491, 3 C.F.R. 861 (1966-1970
comp.) ........ ...................................................................4, 31, 33

Exec. O rder No. 11,616, 3 C.F.R. 305 (1971-1975
comp.) ........................       4

Exec, O rder No. 11,636, 3 C.F.R. 634 (1971-1975
comp.) .......         4

Exec. O rder No. 11,838, 3 C.F.R. 957 (1971-1975
comp.) .............  4 ,1 8 ,3 2 ,3 4 ,3 5

5 C .F .R .:
Section 2 423 .10 (a) .................... ...............................  21
Section 2424.11 ............................   27
Section 2424.11 (a ) .......................................   27
Section 2424.11 ( b ) ...................................      27

M iscellaneous:
124 Cong. Rec. 33389 (1978) ................................... ......  5
Federal Labor Relations Council, Report and Rec­

ommendations on the Amend, of Exec. Order 
1H91, as amended (Jan . 1975) ........................... 32 ,33 ,34

S ta tu te s  an d  r e g u la t io n s— C o n t in u e d : P a g e

114



VII

H.R. 11280, 95th Cong., 2d Sess. (1978) ..35, 36, 37, 38, 39 
II.It. Conf. Rep. 95-1717, 95th Cong., 2d Sess.

(1978) ........... ............... ................. .................................  6 ,37
II.R. Doc. 95-299, 95th Cong., 2d Sess. (1978)........  5
H.R. Rep. 95-1403, 95th Cong., 2d Sess. (1978)....3, 36, 87 
H. Robinson, Negotiability in the Federal Sector

(1981) ................................................. .......................... .. 7 ,28
S. Rep. 95-969, 95th Cong., 2d Sess. (1 9 7 8 )........... . 29

M isce lla n eo u s— C o n t in u e d : P a g e

Staff of the  Subcomm. on Postal Personnel and 
M odernization of the  Comm, on Post Office and 
Civil Service, 96th Cong., 1st Sess., Comm.
Print No. 96-7, Legislative History of the Fed­
eral Service Lab or-Management Relations S ta t­
ute, Title VII of the Civil Service Reform Act
of 1978 (Comm. P rin t 1979) .................................. passim

W ellington & W inter, The Limits of Collective Bar­
gaining in Public Employment, 78 Yale L .J. 1107 
(I960) ........................................ ....................................  40

115



3u %  f$u}trr at? (Emtrt nf %  Mmivh ̂ tatm
O c t o b e r  T e r m , 1987

No. 86-1715

F e d e r a l  L a b o r  R e l a t io n s  A u t h o r it y , p e t it io n e r

v.

A b e r d e e n  P r o v in g  G r o u n d , 
D e p a r t m e n t  o e  t h e  A r m y

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BR IEF FOR TH E RESPONDENT

OPINIONS BELOW

The order of the court of appeals (Pet. App. 16a) 
sum m arily reversing the Federal Labor Relations 
A uthority ’s (the A uthority ) decision is unreported, 
as is the court of appeals’ order (Pet. App. 17a) 
denying the A uthority ’s motion fo r an in itia l hear­
ing en banc. The court’s earlie r decision in United 
Sta tes A rm y  Engineer Center, Fort Belvoir  v. FLRA  
(Pet. App. 52a-69a), upon which the court based its 
sum m ary reversal in this case, is reported a t  762 
F.2d 409. The A uthority ’s decision and order (Pet. 
App. 18a-51a) is reported a t  21 F.L.R.A. No. 100.

(1)

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2

JURISDICTION

The judgm ent of the court of appeals w as en­
tered on Ja n u a ry  28, 1987. The petition for a w rit 
of certio ra ri w as tiled on A pril 24, 1987, and was 
g ran ted  on October 5, 1987. The jurisdiction of this 
Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PRO VISIONS INVOLVED

5 U.S.C. 7117 provides in pertinen t p a r t:  
* * * * *

( a )  (2) The duty  to bargain  in good fa ith  
shall, to the ex tent not inconsistent w ith Federal 
law or any Government-wide ru le or regulation, 
extend to m atters which are the subject of any 
agency rule or regulation referred  to in p a ra ­
graph (3 ) of this subsection only if the A uthor­
ity  has determ ined under subsection (b) of this 
section th a t no compelling need (as determ ined 
under regulations prescribed by the A uthority) 
exists fo r the rule or regulation.

(3) P arag rap h  (2) of the subsection applies 
to any rule or regulation issued by any agency 
or issued by any p rim ary  national subdivision 
of such agency, unless an exclusive representa­
tive represents an appropriate  u n it including not 
less than  a m ajority  of the employees in the is­
suing agency or prim ary  national subdivision, 
as the case may be, to whom the rule or regula­
tion is applicable.

(b) (1) In any case of collective bargain ing  in 
which an exclusive representative alleges th a t no 
compelling need exists for any rule or regulation 
referred  to in subsection (a ) (3) of this section 
which is then in effect and which governs any 
m atte r a t issue in such collective bargaining, the 
A uthority  shall determ ine under paragraph  (2)

1 1 7



3

of th is subsection, in accordance w ith regulations 
prescribed by the A uthority, w hether such a com­
pelling need exists.

(2) F or the purpose of th is section, a com­
pelling need shall be determ ined not to exist for 
any rule or regulation only if—

(A ) the agency, or p rim ary  national sub­
division, as the case may be, which issued 
the rule or regulation inform s the A uthor­
ity  in w riting  th a t a compelling need fo r the 
rule or regulation does not exist; or
(B ) the A uthority  determ ines th a t a com­
pelling need for a ru le or regulation does 
not exist.

(3) A hearing may be held, in the discretion 
of the A uthority , before a determ ination is made 
under th is subsection. If  a hearing  is held, it 
shall be expedited to the extent practicable and 
shall not include the General Counsel as a party.

(4) The agency, or p rim ary  national subdivi­
sion, as the case may be, which issued the rule 
or regulation shall be a necessary pa rty  a t  any 
hearing  under th is subsection.

STA T E M E N T

A. The F ederal Service Labor-M anagem ent Relations 
S ta tu te

1. On October 13, 1978, P resident C arter signed 
into law the Civil Service Reform A ct of 1978, Pub. 
L. No. 95-454, 92 S tat. 1111 (the A ct). T itle VII 
of the A ct (5 U.S.C. (& Supp. IV ) 7101 et seq.), 
entitled the Federal Service Labor-M anagem ent Re­
lations S tatu te , “establishes a s ta tu to ry  basis for 
labor-m anagem ent relations in the Federal service.” 
H.R. Rep. 95-1403, 95th Cong., 2d Sess. 38 (1978). 
Title V II “ thoroughly restruc tu red  federal labor re­

118



4

lations” ( National Federation o f Federal Em ploy­
ees, Local 1669 V. F L E A , 745 F.2d 705, 706 (D.C. 
Cir. 1 9 8 4 )), replacing the federal labor relations 
program  th a t had been created in 1962 by Exec. O r­
der No. 10,988, 3 C.F.R. 521 (1959-1963 com p.).1

Title V II protects the rig h t of federal employees 
“ to form , join, or assist any labor organization, or 
to re fra in  from  any such activ ity” (5 U.S.C. 7102), 
and requires federal agencies to bargain  in good 
fa ith  w ith  the exclusive representatives of un its  of 
employees about the term s and conditions of em­
ployment. See 5 U.S.C. 7102, 7114, 7116(a) (5) and 
( b ) ( 5 ) ;  B ureau of Alcohol, Tobacco & Firearm s  v. 
F L E A , 464 U.S. 89, 92 (1983) (B A T F ). The s ta t­
ute also outlines the m atte rs  th a t are “negotiable”—
i.e., subject to the bargain ing  obligation. See 5 
U.S.C. 7103(a) (12) and (1 4 ), 7117. An agency’s 
refusal or fa ilu re  to bargain  in good fa ith  about a 
negotiable proposal may constitute an u n fa ir  labor 
practice (5 U.S.C. 7 1 1 6 ( a ) ( 5 ) ) ;  w hether i t  does so 
is determ ined in an u n fa ir  labor practice (U L P) 
proceeding under 5 U.S.C. 7118.

Title V II also establishes the Federal Labor Rela­
tions A uthority  (FLR A  or A uthority ), a three-mem­
ber independent body w ithin the Executive B ranch 
with responsibility fo r supervising the federal col­
lective bargain ing  process under T itle V II.1 2 The A u­

1 The executive order program  was revised and continued 
by Exec. O rder No. 1.1,491, 3 C.F.R. 861 (1966-1970 com p.), 
as amended by Exec. O rders Nos. 11,616, 11,636, and 11,838, 
3 C.F.R. 305, 634, 957 (1971-1975 comp.). See pages 31-35 
infra.

2 The FLRA  replaced the Federal Labor Relations Council, 
which had sim ilar responsibilities under the executive order 
program.

119



5

thority  adjudicates negotiability disputes, resolves 
bargain ing  u n it issues and a rb itra tio n  exceptions, 
conducts union elections, and engages in rulem aking. 
See 5 U.S.C. 7105(a) (2) ( A ) - ( I ) .  The FLRA  may 
also issue orders against u n fa ir  labor practices (5 
U.S.C. 7118) and may seek enforcem ent of those or­
ders in appropria te  U nited S tates courts of appeals 
(5 U.S.C. 7 1 2 3 (b )) . Persons, including federal 
agencies, who are  aggrieved by any final FLR A  or­
der m ay likewise seek judicial review in the courts 
of appeals (5 U.S.C. 7 1 2 3 (a )) .

2. a. In  enacting T itle V II, Congress struck  a 
delicate and deliberate balance between the rights 
of employees to bargain  collectively and the “special 
requirem ents and needs of the Governm ent” (5 
U.S.C. 7 1 0 1 (b )) . As P resident C a rte r explained 
when he transm itted  the proposed legislation to Con­
gress, “ [t]h e  goal of th [e ] legislation [is] to make 
Executive Branch labor relations more comparable to 
those of p rivate  business, while recognizing the spe­
cial requirem ents of the Federal governm ent and the 
param ount public in te rest in the effective conduct of 
the public’s business.” H.R. Doc. 95-299, 95th Cong., 
2d Sess. 4 (1978), reprinted in  S taff of the Sub- 
comm. on Postal Personnel and M odernization of the 
House Comm, on Post Office and Civil Service, 96th 
Cong., 1st Sess., Comm. P rin t No. 9-67, Legislative 
H istory o f the Federal Service Labor-M anagement 
Relations S ta tu te , T itle V II  o f the Civil Service Re­
fo rm  A ct o f 1978, a t 626 (Comm. P r in t 1979) [here­
ina fte r Leg. H ist)].3 Congress specified th a t T itle VII * VII

8 See also 124 Cong. Rec. 33389 (1978) (Sen. Percy) (Title
V II “ represents a  fa ir  balance between the righ ts  of employees 
to form  and p artic ipa te  in bargain ing  units * * * and the

120



6

“m ust be construed in ligh t of the param ount rig h t 
of the public to as effective and efficient a Govern­
m ent as possible.” II.It. Conf. Rep. 95-1717, 95th 
Cong., 2d Sess. 154 (1978). As this Court explained 
in the B A T F  case, T itle V II “significantly s treng th ­
ened the position of public employee unions,” while 
a t the same tim e “carefully preserving the ability  of 
federal m anagers to m ain tain  ‘an effective and effi­
cient G overnm ent'” (B A T F , 464 U.S. a t  92).

In  particu la r, “ the scope of collective bargain ing  
is f a r  narrow er in the federal sector than  in the p ri­
vate sector” ( F L R A  v. OPM, 778 F.2d 844, 845 
(D.C. Cir. 1985) (footnote o m itted )) . In con trast 
to the N ational Labor Relations Act, fo r example, 
Section 7106(a) of Title V II expressly identifies 
certain  “m anagem ent rig h ts” th a t are  not negoti­
able. U nder th a t provision, an agency may, free 
from the prospect of bargaining, “determ ine [its] 
mission, budget, organization, num ber of employees, 
and in ternal security  practices” (5 U.S.C. 7106(a) 
( 1 ) ) ;  “hire, assign, direct, layoff, and re ta in  em­
ployees” or “suspend, remove, reduce in grade or 
pay, or take other disciplinary action against such 
employees” (5 U.S.C. 7 1 0 6 ( a ) ( 2 ) ( A ) ) ;  “assign 
work,” “make determ inations w ith respect to con­
trac ting  out,” and “determ ine the personnel by which 
agency operations shall be conducted” (5 U.S.C. 7106 
( a ) ( 2 ) ( B ) ) ;  select persons to fill positions (5 U.S.C. 
7 1 0 6 ( a ) ( 2 ) ( C ) ) ;  and “take w hatever actions may 
he necessaiy to carry  out the agency mission during  
emergencies” (5 U.S.C. 7 1 0 6 ( a ) ( 2 ) ( D ) ) .  And 
“ [ejven though the p a rtie s  may execute a contract

need of the Governm ent to m aintain the efficiency of its 
operations’’); N TE U  v. FLRA, 691 F.2d 553, 560-561 & 
nn.69-73 (D.C. Cir. 1982).

121



7

provision encompassing section 7106(a) m atters, 
such agreem ent is invalid and m ay not be enforced.” 
H. Robinson, N egotiability in  the Federal Sector 18 
(1981).4

b. One of the specific lim itations on the duty  of 
a governm ent employer to bargain  is set forth  in 
Section 7 1 1 7 (a ) (2 ) , which provides th a t an agency’s 
duty to bargain  extends to m atte rs  covered by an 
agency-wide ru le or regulation (or by a rule or regu­
lation issued by a “p rim ary  national subdivision” of 
an agency) (5 U.S.C. 7 1 1 7 (a ) (3 ) )  “only if  the A u­
thority  has determ ined under subsection (b) [5
U.S.C. 7117(b)!] th a t no compelling need * * * exists 
fo r the rule or regulation” (5 U.S.C. 7 1 1 7 (a ) (2 ) ) .  
Section 7117 thus strikes a balance: while it  author­
izes negotiations on m atters covered by agency reg­
ulations, it also recognizes “ th a t w ithin every agency 
there exists a governm ental mission which m ay not 
be compromised or negotiated away, in whole or in 
part, a t  the bargain ing  table.” A F G E  v. F L R A , 730 
F.2d 1534, 1539 (D.C. Cir. 1984). P u t another way, 
Section 7117 establishes a “workable accommodation 
between the objectives of prom oting collective bar­
gaining and preserving m anagem ent au thority  in cer­
ta in  im portan t areas.” Association o f C ivilian Tech­
nicians, M ontana A ir  Chapter v. F L R A , 756 F.2d 
172, 178 (D.C. Cir. 1985).

4 U nder 5 U.S.C. 7103(a) (14), the duty to  bargain  also 
excludes “policies, practices, and m atte rs— (A) re la ting  to 
political activities * * *; (B) re la ting  to  the classification of 
any position; or (C) to  the ex ten t such m atters  are specifi­
cally provided fo r by Federal s ta tu te .” And under 5 U.S.C. 
7117(a) (1 ) , there is no duty to bargain  about "m atte rs  which 
are the subject of * * * a  Governm ent-wide ru le or regula­
tion.” See Library of Congress V. FLRA, 699 F.2d 1280, 1283- 
1284 & n.16 (D.C. Cir. 1983).

122



8

c. T itle V II provides procedures for determ ining 
whether a proposal is “negotiable” and, in cases where 
a labor representative alleges th a t an agency-wide 
regulation does not b a r negotiations because there is 
no “compellling need” fo r the regulation, fo r deter­
m ining compelling need. An ord inary  negotiability 
question, such as w hether a proposal would traverse 
“m anagem ent righ ts,” may be resolved in a ULP 
proceeding a f te r  m anagem ent has refused to b a r­
gain; such a question may also be resolved by w hat 
the parties agree is an optional a lternative proce­
dure, a “negotiability appeal” by the union, to the 
FLRA, under 5 U.S.C. 7117(c).

A different subsection, 5 U.S.C. 7117(b ), provides 
a separate, and we believe exclusive, procedure for 
deciding w hether there is a compelling need for an 
agency regulation. Section 7117(b) (1) provides th a t 
“ [ i jn  any case of collective bargain ing  in which an 
exclusive representative alleges th a t no compelling 
need exists fo r any rule or regulation * * * which 
is then in effect and which governs any m atte r a t 
issue in such collective bargaining, the A uthority  
shall determ ine * * * w hether such a compelling 
need exists” . In m aking this determ ination, the A u­
thority m ay hold a hearing  (5 U.S.C. 7 1 1 7 (b ) (3 ) ) .  
Unlike a U LP proceeding (compare 5 U.S.C. 7118), 
a Section 7117 hearing  “shall be expedited to the 
extent practicable and shall not include the “A uthor­
ity’s] General Counsel as a p a rty ” (5 U.S.C. 7117 
( b ) ( 3 ) ) ,  b u t shall include the agency or prim ary  
national subdivision as a necessary p a rty  (5 U.S.C. 
7 1 1 7 (b )(4 )) . And whereas a U LP proceeding may 
result in the retroactive imposition of sanctions 
against the agency (see 5 U.S.C. 7 1 1 8 (a ) (7 ) ) ,  a 
finding of no compelling need under Section 7117 has

123



9

only the prospective effect of requiring  the agency, 
or the local employer, to negotiate over the subject 
m a tte r purportedly covered by the agency regulation. 
See F IJ I A  v. OPM, 778 F.2d 844, 846 & n . l l  (D.C. 
Cir. 1985).

B. The P resen t C ontroversy

1. The present case arose on Septem ber 14, 1981, 
when, in an effort to conserve energy, respondent 
decided to close operations a t  the Aberdeen Proving 
Ground (APG or Aberdeen) fo r the three days after 
Thanksgiving, November 27-29, 1981. On September 
15, David R. W eppner, respondent’s labor relations 
specialist, m et w ith representatives of the various 
unions representing APG employees and notified 
them tha t, as a resu lt of the decision to curta il opera­
tions, all APG employees would be obliged to take 
annual leave on F riday , November 27. Pet. App. 
34a-35a.

On October 6, respondent m et w ith union repre­
sentatives to discuss how the closure plans would be 
implemented.' Colonel Robert P. Jones, who chaired 
the meeting, re iterated  th a t employees would have to 
take annual leave on November 27, and th a t if an 
employee had not accrued annual leave tim e he could 
be advanced leave time, take compensatory time, 
take leave w ithout pay, or would be perm itted to 
work. Pet. App. 36a. Following the meeting, re­
spondent invited the unions “ to negotiate concerning 
the im pact and implementation of th [e ] decision” 
(id. a t  37a (citation o m itted )).

Negotiations took place on October 19, 1981. 
Union representatives proposed th a t instead of hav­
ing to take annual leave employees be granted  ad­
m inistra tive leave (Pet. App. 38a). W eppner, repre­
senting respondent, rejected th is proposal, explaining

124



1 0

th a t “ ‘the rules and regulations * * * * * ***** * * do not per­
m it him to do th is and th a t it verges on nonnegoti­
ability  in his opinion*” (ibid, (c ita tion  o m itted )). 
Respondent relied in p a rticu la r on A rm y and De­
partm en t of Defense regulations th a t generally pro­
hibit g ran ting  adm inistrative leave when a t  least 
24 hours’ notice of an  anticipated closure can be 
given.®

6 DA Regulation CPR 990-2 provides in relevant p a r t  (Pet.
App. 42a-43a (quotation m arks o m itted )):

S3-2. Relieving Daily, Hourly, or Piecework Employees 
From Duty

*  sk *  *  *

c. Where advance notice can be given. The A uthor­
ity  to excuse employees adm inistratively  is not to 
be used in instances w here the period of in te r­
rupted or suspended operations can be anticipated 
sufficiently in advance to  perm it a rran g in g  fo r 
assignm ent to o ther w ork o r the scheduling of 
anim al leave. Normally, where 24 hours’ advance 
notice can be given, employees who cannot be 
assigned to o ther work m ust be placed on annual 
leave w ith or w ithout th e ir consent.

DOD Regulation 1400.25-M provides in relevant p a r t  (Pet.
App. 43a (quotation m arks o m itted )):

S3-1 * * *
d. Limitation on Authority to Dismiss Employees 

Without Charge to Leave
* * * * *

(2) When, because of planned m anagem ent reasons, 
the closing of all o r p a r t  of an activity  is required fo r 
sh o rt periods of time, employees will be notified no less 
than one full work sh ift in advance and will be required 
to take annual leave unless leave w ithout pay is requested.

(3) Group dism issal au thority  will not be used to 
create a holiday.

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11

2. The In ternational Association of M achinists 
and Aerospace W orkers (the union) th e reafte r filed 
a U LP charge, alleging among other th ings th a t re­
spondent had violated 5 U.S.C. 7 1 1 6 (a )(1 )  and (5) 
by refusing  to bargain  over the union’s proposal th a t 
adm inistrative leave be g ranted  when APG was 
closed on November 27. On June 15, 1982, the ad­
m inistrative law judge ruled in respondent’s favor 
and recommended th a t the A uthority  dism iss the 
union’s com plaint (P et. App. 33a-51a). The A LJ 
found th a t “ [R espondent's  reliance on the DOD and 
DA Regulations as the basis for its rejection of [the 
union’s] demand fo r adm inistrative leave was in 
good fa ith ” (id. a t 43a). Noting th a t the DOD regu­
lations were “ ‘agency’ regulations w ithin the mean­
ing of [5 U.S.C. 7 1 1 7 (a )(2 )  and ( 3 ) ] ” and tha t 
“ the DA Regulations were issued by a ‘p rim ary  na­
tional subdivision of said agency’ w ithin the mean­
ing of [5 U.S.C. 7 1 1 7 ( a ) ( 3 ) ] ,” the A L J explained 
th a t under Section 7 1 1 7 (a )(2 )  the agency therefore 
had a duty to bargain  over the adm inistrative leave 
proposal “ ‘only if  the A uthority  has determined 
under [Section 7 1 1 7 (b )] th a t no compelling need 
* * * exists fo r the rule or regulation’ ” (Pet. App. 
44a). Because “ [t]h e  A uthority  h a [d ] made no such 
determ ination [w ith respect to] * * * either the 
DOD or the DA R egulation” (ib id .), the A L J con­
cluded th a t “ [R espondent was under no duty  to b ar­
gain as to the g ra n t of adm inistrative leave for 
November 27, 1981” (id. a t 45a).

3. The A uthority  reversed (Pet. App. 18a-32a). 
I t  first rejected respondent’s contention (id. a t  21a) 
th a t “ it had no duty to establish a compelling need 
fo r its regulations w ithout the issue having been 
raised by the Union under the A uthority ’s negoti-

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1 2

ability procedures.'1' The A uthority  acknowledged 
(id. a t  22a-23a) th a t “when an agency refuses to 
bargain  over a union proposal du ring  ongoing col­
lective bargain ing  negotiations because the proposal 
is alleged to be inconsistent w ith an existing agency­
wide regulation fo r which a compelling need exists, 
section 7117 of the S ta tu te  requires th a t the issue be 
resolved through the procedures in section 7117 of 
the S ta tu te  and P a r t  2424 of the A uthority 's  Rules 
and Regulations.'' B u t relying on its p rio r decision 
in Defense Logistics Agency , 12 F.L.R.A, 412 
(1983), aff’d sub nom. Defense Logistics Agency  v. 
F L R A , 754 F.2d 1003 (D.C. Cir. 1985), the A u­
thority  held (Pet. App. 23a) th a t “ [a] different 
situation is presented" when an agency is alleged to 
have made “un ilateral changes in conditions of em­
ployment" and “ issues of negotiability— including, 
as in the in s tan t case, assertions of compelling need 
for agency regulations— are raised as affirmative 
defenses" (ib id .). In such cases, the A uthority  
stated (ib id .), the question of w hether there exists 
a compelling need fo r an agency-wide regulation may 
be resolved in two different w ays: “ [T ]he  A uthority  
has prom ulgated procedures * * * which recognize 
a union’s rig h t e ither: (1) to seek resolution of the 
entire dispute, including the negotiability issues, in 
the u n fa ir  labor practice forum ; or (2) to seek ini­
tial and separate  resolution of the negotiability issues 
in the negotiability appeal forum ” (ibid.).

In  reaching this conclusion, the A uthority  rea­
soned th a t in the p rivate  sector issues of negotiability 
may be resolved in u n fa ir  labor practice proceedings 
and it discerned nothing in the Act or in its legisla­
tive h istory to “suggest [] th a t Congress intended to 
make an exception in the federal sector to this p rin ­

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13

ciple” (Pet. App. 23a-24a). The A uthority  said that 
the negotiability appeals procedures contained in 
Section 7117(b) do not “preclude the A uthority  from 
resolving any necessary negotiability issues, includ­
ing those related to the compelling need fo r an 
agency regulation, in a un ila teral change u n fa ir  la­
bor practice case” (P et. App. a t  24a). And it  found 
confirm ation fo r th a t view in the “pre-S tatu te  labor- 
m anagem ent relations program , Executive Order 
11491, [which] authorized precisely w hat the Au­
tho rity ’s procedures * * * were prom ulgated to per­
m it: unified processing of any compelling need ne­
gotiability issue in the u n fa ir  labor practice proceed­
ing in which it arises” (id. a t 25a (footnote omit­
te d ) ) .  The A uthority  asserted th a t its  approach to 
the determ ination of compelling need issues “ef­
fectuates Congress’ goal to facilita te  and promote the 
collective bargain ing  process by providing fo r the 
resolution of all relevant issues in one proceeding, 
thereby obviating the delay inherent in two separate 
and consecutive proceedings” (ib id .).

Having decided th a t the compelling need for the 
regulations in this case could be resolved in the ULP 
proceeding, the A uthority  next found th a t respondent 
had “failed to sustain  its burden of establishing a 
compelling need for the DOD and DA regulations in 
accordance w ith * * * the A uthority ’s Rules and 
Regulations” (Pet. App. 27a). I t  held th a t respond­
ent had not shown th a t the regulations in question 
promoted the “goal of conserving energy” in that 
“ [t]h e  record is barren  of evidence which would 
dem onstrate how the g ran ting  of administrative 
leave to u n it employees, ra th e r than  annual leave, 
as the Union’s proposal a t  issue here would require, 
in any way affects the Respondent’s stated  objective

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14

of conserving energy" (ib id .). The A uthority  ac­
cordingly held th a t respondent had violated Section 
7 1 1 6 (a )(1 )  and (5) when it  refused to negotiate 
concerning the adm inistrative leave proposal (Pet. 
App. 28a). I t  ordered respondent to cease and desist 
from its refusal to negotiate, and it g ranted  certa in  
additional affirmative relief (id. a t  28a-30a).

4. Relying on its earlier decision in United States  
A rm y Engineer Center, Fort Belvoir v. F L R A , 762 
F.2d 409 (Pet. App. 52a~69a), the court of appeals, 
in an unpublished order, sum m arily reversed (id. a t 
16a). In Fort Belvoir, a union institu ted  a U LP 
proceeding under Section 7118 when F o rt Belvoir, 
a component of the D epartm ent of the Arm y, refused 
to negotiate concerning an A rm y regulation th a t es­
tablished a new perform ance appraisal system. As 
in the present case, the A uthority  decided in the con­
text of the U LP proceeding th a t there w as no com­
pelling need for the A rm y regulation. The court of 
appeals reversed, holding (Pet. App. 57a-58a (em ­
phasis in the o rig in a l)) th a t “ [t]h e  Federal Labor 
M anagement Relations Act states in unam biguous 
terms tha t, w here an agency regulation is asserted 
as a b a r to negotiations between a governm ental em­
ployer and a union, the FLRA m ust determ ine th a t 
no compelling need for the regulation exists before 
any duty to bargain  arises on the p a r t  of the em­
ployer." The court observed fu r th e r th a t “ [ i ] t  is 
illogical, in light of this language, to m ain tain  th a t 
a union could charge an agency w ith ‘having engaged 
in or engaging in an u n fa ir  labor practice,’ 5 U.S.C. 
§ 7 1 1 8 (a ), because the employer has refused to b a r­
gain over subject m atte r as to which no duty  to b a r­
gain has been determined  to ex ist” (id. a t 61a (em ­
phasis in the o rig in a l)) . The court examined the

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15

legislative history of the Act and concluded that 
Congress had deliberately chosen “ to provide sepa­
rate  avenues of negotiability appeals and u n fa ir la­
bor practice proceedings to resolve different kinds of 
questions” (id. a t 67a (em phasis in the orig inal)). 
Noting in p a rticu la r the procedural differences be­
tween a negotiability appeal under Section 7117(b) 
and a U LP proceeding, the court held th a t Congress 
intended under Section 7117 “to give a governmental 
agency the ‘flexibility to issue and revise regulations 
which the agency deems are essential to accomplish 
its executive function,’ * * * while protecting the 
agency from  the risk of thereby incurring  the sanc­
tions of an u n fa ir  labor practice proceeding” (Pet. 
App. 69a). The court accordingly concluded (ibid.) 
th a t “Congress m eant the § 7117(b) negotiability 
appeal to be the sole means of determ ining a com­
pelling need question under the s ta tu te .”

SUMMARY OF ARGUM ENT

A government employer has a duty to bargain in 
good faith , but only over “negotiable” issues. The 
question w hether an issue is negotiable may ordi­
narily  be answered either in an u n fa ir  labor practice 
proceeding brought by the union a fte r  the employer 
has refused to bargain, or (a t  the union’s option) in 
a “negotiability appeal” taken by the union under 
5 U.S.C. 7117(c) a fte r  the employer has asserted 
th a t an issue is nonnegotiable. B ut Congress de­
signed a different procedure to be followed when a 
governmental employer asserts th a t a bargaining 
proposal is nonnegotiable because it is governed by 
an agency-wide regulation, and the union contends 
th a t there is no compelling need for the regulation. 
In th a t event, 5 U.S.C. 7117(a) and (b) provide a

1 3 0



1 6

separate procedure for determ ining the compelling 
need for the regulation, and thus w hether the pro­
posal is negotiable. The court of appeals ruled, we 
believe clearly correctly, th a t this separate  procedure 
is exclusive, and th a t the allegation of “no com­
pelling need" may not be resolved in an u n fa ir  labor 
practice proceeding.

A. The plain language of the s ta tu te  is dispositive. 
Section 7 1 1 7 (a )(2 )  states th a t “ [t!]he duty  to b ar­
gain in good fa ith  shall * * * extend to m atte rs  
which are the subject of any agency rule o r regula­
tion * * * only i f  the A uthority  has determined, un­
der subsection ( b) of th is section th a t no compelling 
need * * * exists for the ru le or regulation" (em­
phasis added). Unless and until the A uthority  “has 
determ ined" compelling need, a governm ent employer, 
such as Aberdeen, has no duty to bargain  over m at­
ters covered by the regulations of the agency (such as 
DOD) or p rim ary  national subdivision (such as the 
DA) of which it is a part, and thus cannot have com­
mitted a ULP. Section 7 1 1 7 (a )(2 )  provides th a t 
compelling need shall be determ ined “under subsection 
(b )" ;  it  does not suggest th a t the U LP process would 
do ju s t as well. The language of Section 7117(b), in 
turn , confirms th a t the procedures in th a t section are 
exclusive: Section 7 1 1 7 (b )(1 ) states th a t “ in any 
case of collective bargain ing" in which the compelling 
need fo r agency regulations is p u t in issue, the A u­
thority  “shall determ ine” compelling need “under 
paragraph ( 2 ) ” of the section. This language con­
tras ts  sharply with the language of Section 7117(c), 
which applies to all negotiability appeals “except in 
a case to which subsection (b) * * * applies." Sec­
tion 7117(c) expressly gives the union an optional 
alternative to proceeding by way of the U LP process;

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1 7

it  provides th a t “ the exclusive representative may 
appeal the allegation [of nonnegotiability] to the 
A uthority .”

B. There are  two evident reasons fo r requiring 
th a t compelling need issues be determ ined in advance 
of and outside the U LP forum . Unlike an ordinary 
negotiability dispute between a  p a rticu la r govern­
m ent employer and a  union, a compelling need inquiry 
calls into question the im portance and legitimacy of 
the agency’s regulations; the present case, fo r exanv 
pie, involves not merely a dispute between the union 
and Aberdeen, which would ordinarily  defend a ULP 
charge, bu t a challenge to regulations th a t the De­
partm en t of Defense and the D epartm ent of the Army 
consider to be w ithin th e ir prerogatives. Congress 
therefore provided in Section 7117(b) a  special pro­
cedure in which the agency would have the righ t to 
explain and defend its  own regulations, in an exped­
ited proceeding before the FLEA  itself. Second, Con­
gress evidently did not w an t to place agencies in the 
position of adopting regulations— a t least any regula­
tion th a t may change a condition of employment (a 
term  th a t is broadly defined under T itle V II (see 5 
U.S.C. 7103(a) (1 4 ) ) , a t the peril of U LP sanctions. 
I t  wanted instead to provide a  proceeding in which 
the only adverse consequence of a determ ination of 
“no compelling need” is th a t there would then be a 
duty to bargain.

C. The history of the s ta tu te  confirms th a t Section 
7117(b) is the only means fo r resolving compelling 
need issues. Indeed, in connection w ith nearly iden­
tical “compelling need” language in a precursor to 
Section 7117, Congress considered the very question 
presented in this case and rejected the interpretation 
urged by the A uthority. P etitioner's con trary  view,

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18

predicated on the supposed pre-A ct practice under 
the Executive Orders, is m istaken. Although Execu­
tive O rder No. 11,838 authorized the A ssistan t Secre­
tary  of Labor to resolve negotiability issues in a 
ULP proceeding, there is no evidence th a t the A ssist­
ant Secretary was authorized to decide compelling 
need issues. To the contrary, Executive O rder No. 
11,838, and the Report and Recommendations on 
which it was based, explicitly established a separate  
and different procedure fo r resolving compelling need 
questions.

D. Largely ignoring the text, and finding the fo r­
mal legislative history of Title V II silent on the ques­
tion presented (see Br. 13, 30, 33), petitioner relies 
on certain  “considerations of public policy” to support 
its construction of the s ta tu te  (B r. 42). I t  insists 
that “ it is in the in terest of the efficient and effec­
tive adm inistration of the S ta tu te  th a t all issues 
which arise in an u n fa ir  labor practice dispute 
be resolved in th a t u n fa ir  labor practice proceeding” 
(Br. 42-43). And it asserts th a t there are  “no draw ­
backs” to its approach. B ut it is not clear th a t a ULP 
proceeding is an efficient way to resolve “compelling 
need” issues, much less th a t such an approach would 
promote the efficiency of the Government as a whole. 
And in any event, these untethered policy claims can­
not ju s tify  an in terpreta tion  so plainly a t  odds w ith 
the tex t and evident purpose of the statu te . “Al­
though Congress certainly could have adopted the 
model of collective bargain ing  advanced by [peti­
tioner], we find no indications in the A ct or its legis­
lative history th a t it  intended to do so.” B A  TF  v. 
FLRA , 464 U.S. a t 103.

1 3 3



19

ARGUM ENT

SECTION 7117(b) PRO V ID ES T H E  ONLY PROCE­
DURE FOR CHALLEN GING T H E  COMPELLING
N EED  FOR A REGULATION ISSU ED  IlY AN AGENCY
OR PRIM ARY NATIONAL SU BD IV ISIO N

O rdinary  negotiability disputes under Title VII 
may be litigated  either in an u n fa ir  labor practice 
proceeding or in a “negotiability appeal” under Sec­
tion 7117(c). B ut Congress recognized th a t where 
a m atte r is alleged to be nonnegotiable because it is 
governed by an agency regulation, and th a t regula­
tion is alleged to lack a compelling need, there are 
im portant reasons to resolve the compelling need issue 
in a separate, expedited, and exclusive procedure be­
fore the FLRA, to which the agency th a t issued the 
regulation is invited and the A uthority’s General 
Counsel is not. Congress articu lated  its intentions in 
the text of Title VII, and it expressed its in terpreta­
tion of th a t tex t in the legislative history. The com­
peting policy considerations on which petitioner relies 
are mistaken in fact, and in any event cannot over­
ride the plain m eaning of the s ta tu to ry  provisions.

A. The Language of the S ta tu te  P la in ly  Ind icates That 
Section 7117(h) is the Only Procedure for Challenging 
Compelling Need

“ [Wl]e begin w ith the relevant provisions of [Title 
V II], which is where an unsophisticated lawyer or 
laym an would probably think we should begin.” 
Carter v. Kentucky, 450 U.S. 288, 308-309 (1981) 
(Rehnquist, J., d issenting). As this Court has ex­
plained many times, “ the s ta rtin g  point for interpret­
ing a sta tu te  is the language of the s ta tu te  itself. 
Absent a clearly expressed legislative intention to the 
contrary, th a t language m ust ord inarily  be regarded

13 4



2 0

as conclusive.” Consumer Product S a fe ty  Comm'n  v. 
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Ac­
cord IN S  v. Cardoza-Fonseca, No. 85-782 (M ar. 9,
1987), slip op. 10 n.12; Aaron  v. SEC, 446 U.S. 680, 
695 (1980); Greyhound Cory. v. M t. Hood Stages, 
Inc., 437 U.S. 322, 330 (1978). Here, the language 
and s tru c tu re  of T itle V II leave no doubt th a t Con­
gress intended the negotiability appeal procedures in 
Section 7117(b) to be the exclusive means for chal­
lenging the compelling need fo r an agency-wide or 
prim ary-national-subdivision-wide regulation.*

1. Section 7 1 1 7 (a )(2 )  provides th a t “ [t]h e  duty  
to bargain  in good fa ith  shall * * * extend to m a t­
ters which are  the subject of any agency rule or regu­
lation '[issued by an agency or p rim ary  national sub­
division] only i f  the A uthority  has determ ined under 
subsection ( b) of this section th a t no compelling need 
* * * exists fo r the rule or regulation” (em phasis 
added). This language is altogether inconsistent 
with perm itting  a union— as the A uthority  did here­
to demand to bargain  over a m atte r squarely covered 
by agency regulations and defend th a t demand by 
contending fo r the first tim e in the ensuing u n fa ir

0 P etitioner’s fa ilu re  to come to grips w ith the sta tu to ry  
language of T itle V II is epitomized by its assertion (Br. 3-4) 
that Section 7 1 1 7 (a )(2 ) provides th a t " there  is * * * no 
duty to bargain  over proposed contract language which would 
bring about an inconsistency w ith e ither an agency regulation 
or a regulation of an agency's p rim ary  national subdivision 
whenever the A uthority  determ ines, under the c rite ria  set 
forth  in 5 C.F.R. 2424.11, th a t a compelling need exists fo r the 
regulation.” W hat Section 7 1 1 7 (a )(2 )  actually says is 
(i) th a t th ere  is no duty to bargain  unless the A uthority  has 
determined th a t there is no compelling need and (ii) th a t such 
a determ ination shall be made “under subsection (b) of this 
section.”

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21

labor practice proceeding th a t there is no “compelling 
need” fo r the regulation. F irs t, the language makes 
it clear th a t the agency simply has no duty  to bargain 
unless and until the A uthority  “has determ ined” that 
there is no compelling need. As the court of ap p ea l 
observed in Fort Belvoir, “>[i]t is illogical, in light of 
this language, to m ain tain  th a t a  union could charge 
an agency w ith ‘having engaged in or engaging in an 
u n fa ir  labor practice,’ 5 U.S.C. 7118 (a ) ,  because the 
employer has refused to bargain  over subject m atter 
as to which no duty to bargain  has been determined 
to exist” (Pet. App. 61a (em phasis in the o rig inal)). 
Second, the language of Section 7 1 1 7 (a )(2 )  makes 
i t  clear th a t compelling need may “only” be deter­
mined “under subsection (b )”— not in a U LP forum.

The role of the A uthority ’s General Counsel in 
u n fa ir  labor practice proceedings appears to confirm 
this reading of Section 7117(a) (2 ) . A U LP proceed­
ing under Section 7117 is commenced when a charge 
is filed w ith the General Counsel of the Authority. 
The General Counsel m ust then “ investigate the 
charge” and “m ay issue and cause to be served upon 
the agency or labor organization a com plaint.” If the 
General Counsel concludes th a t the “com plaint fails 
to sta te  an u n fa ir  labor practice,” he “shall provide 
the person m aking the charge a w ritten  statem ent of 
the reasons fo r not issuing a com plaint.” 5 U.S.C. 
7118(a) (1 ) ;  5 C.F.R. 2423.10(a). Where contraven­
tion of an agency-wide regulation is involved, the 
General Counsel cannot, we suggest, conclude that a 
refusal-to-bargain charge states an u n fa ir  labor prac­
tice, and file a complaint, unless the A uthority  “has 
determ ined under subsection ( b ) ” th a t there is no 
compelling need for the regulation. W ere he to do so 
w ithout a p rio r A uthority  determ ination, the premise

136



22

for the com plaint would be false, and the General 
Counsel, who is expressly excluded from  partic ipating  
in compelling need determ inations under Section 
7117(b), would instead be playing the leading role 
in seeking a determ ination of no compelling need. See 
generally Turgeon  v. F L R A , 677 F.2d 937 (D.C. Cir. 
1982).

2. Section 7117(b) sets fo rth  the basic fram ew ork 
for A uthority  determ inations of compelling need, and 
its language strongly reconfirms th a t these procedures 
are exclusive. Section 7117(b) (1) sta tes:

In  any case of collective bargain ing  in which 
an exclusive representative alleges th a t no com­
pelling need exists for any rule or regulation 
[issued by any agency or by a p rim ary  national 
subdivision of such agency)] which is then in 
effect and which governs any m atte r a t  issue in 
such collective bargaining, the A uthority  shall 
determ ine under paragraph  (2) of this subsec­
tion, in accordance w ith regulations prescribed 
by the A uthority  w hether such compelling need 
exists.

The provision applies by its term s to “any case of 
collective bargain ing” in which there is a claim by 
an exclusive representative th a t no compelling need 
exists for any agency regulation; it  contains no excep­
tions. The language ( “shall determ ine” ) is “m an­
datory and unequivocal.” Rodriquez v. Compass Ship­
ping Co., 451 U.S. 596, 602 (1981). Using “ the 
im perative voice” (Califano v. Yam asaki, 442 U.S. 
682, 693 (1979) (footnote o m itted )), Section 7117 
(b ) (1 )  directs the A uthority  to assess compelling 
need “under paragraph  ( 2 ) ” of Section 71 1 7 (b ); 
there is no suggestion th a t the question can aw ait, or 
be decided in, a U LP proceeding.

1 3 7



23

Section 7117(b) (3) and (4 ) , which set out the 
procedures th a t the A uthority  is to follow in assessing 
compelling need, establish a procedural framework 
quite different from  a U LP proceeding. The FLRA is 
authorized to convene a “compelling need" hearing, 
which “shall be expedited to the ex tent practicable 
and shall not include the General Counsel as a party” 
(5 U.S.C. 7117(b) ( 3 ) ) .  Moreover, “ [{J]he agency, or 
p rim ary  national subdivision, as the case may be, 
which issued the ru le or regulation shall be a neces­
sary  p a rty  a t any hearing” (5 U.S.C. 7117(b)(4)). 
As we argue fu r th e r below (see pages 28-29, infra), 
it  is inconsistent w ith these requirem ents to infer the 
existence of a separate  U LP procedure, available at 
the option of the employee bargain ing  representative, 
in which none of these requirem ents applies.

3. Finally, the con trast between the mandatory 
language of Section 7117(b), which deals with ques­
tions of compelling need, and the language of Section 
7117(c), which deals w ith o rd inary  negotiability is­
sues, fu rth er dem onstrates th a t the Section 7117(b) 
procedure is exclusive. Section 7117(c) creates an 
expedited appeal process to resolve negotiability issues 
“\e]xcept in any case to which subsection (b) of this 
section [governing compelling need] applies” (em­
phasis added). Section 7117(c) (1) states th a t “if an 
agency involved in collective bargain ing  w ith an ex­
clusive representative alleges th a t the duty to bargain 
in good fa ith  does not extend to any m atter, the 
exclusive representative m ay appeal the allegation to 
the A uthority  in accordance w ith the provisions of 
this subsection” (emphasis added). This section says 
“may appeal”— a “permissive, not m andatory” term 
( Terre H aute Indianapolis R .R . v. Indiana, 191 
U.S. 579, 588 (1 9 0 4 ))—because Congress sought only

1 3 8



24

to create an optional alternative to the ord inary  pro­
cedure of testing m anagem ent’s refusal to bargain  by 
filing an u n fa ir  labor practice charge under Section 
7118. See A F G E  v. F L R A , 778 F.2d 850, 853 & n.4 
(D.C. Cir. 1985); Natio7ial Fed’n  o f Fed. Employees, 
Local 1167 v. F L R A , 681 F,2d 886, 890 & n.6 (D.C. 
Cir. 1982).

By contrast, the language of Section 7 1 1 7 (a )(2 )  
and ( b ) ( 1 ) — “only if the A uthority  has determ ined 
under subsection ( b ) ” ; the A uthority  “shall deter­
mine”— is not permissive. Of. Escoe v. Zerbst, 295 
U.S. 490, 493-494 (1935). As the court of appeals 
explained (Pet. App. 61a) in the F ort Belvoir case, 
“ ‘ [o ]n ly’ is a highly singu lar word. I t  does not sug­
gest alternatives or choice.” And the difference be­
tween “the A uthority  shall determ ine” in Section 
7117(b) (2) and “ [the union)] m ay appeal” in Section 
7117(c) could not be p lainer: “ In the first the word 
‘shall’ and in the la tte r provision the word ‘m ay’ is 
used, indicating command in the one and permission 
in the o ther.” United States  v. Thoman, 156 U.S. 
353, 360 (1895). See also Farm ers <fr M erchants 
Bank v. Federal Reserve Bank, 262 U.S. 649, 662- 
663 (1923); Thompson v. Roe, 63 U.S. (22 How.) 
422, 434 (1860). In using th is s ta tu to ry  structu re , 
Congress “dem onstrated th a t it knew how to provide 
[for a lternative means of resolving negotiability dis­
putes] when i t  wished to do so elsewhere in the very 
‘legislation cited.’ ” Lehm an  v. N akshian, 453 U.S. 
156, 162 (1981) (quoting Galloway v. United States, 
319 U.S. 372, 389 (1 9 4 8 )). “U nder trad itional p rin ­
ciples of s ta tu to ry  construction,”  the difference be­
tween the sections m ust therefore be seen as inten­
tional.7 Fedorenko v. United States, 449 U.S. 490,

7 Congress enacted both the compelling need provisions and 
the provisions in Section 7117(c) a t the same time, and

139



25

512 (1981). See Lawrence County  v. Lead-Deadwood 
School D istrict No. AO-1, 469 U.S. 256, 267 (1985); 
United S tates  v. Erika, Inc., 456 U.S. 201, 208 
(1982). The court of appeals was thus manifestly 
correct when it  concluded in F ort Belvoir (Pet. App. 
67a (em phasis in the o rig in a l)) th a t Congress delib­
erately chose “ to provide separate avenues of negoti­
ability  appeals and u n fa ir  labor practice proceedings 
to resolve different kinds of questions.” 8

“ ‘[w ]here  Congress includes p articu la r language in one sec­
tion of a s ta tu te  bu t om its it in another section of the same 
Act, it is generally presumed th a t Congress acts intentionally 
and purposely in the d ispara te  inclusion or exclusion.’ ” 
Russello V. United States, 464 U.S. 16, 23 (1983) (citation 
om itted). Accord INS  v. Cardoza-Fonseca, No. 85-782 (Mar. 
9, 1987), slip op. 10. See also Kissinger v. Reporters Comm, 
for Freedom of the Press, 445 U.S. 136, 148-149 (1980); 
Transamerica Mortgage Advisors, Inc. V. Lewis, 444 U.S. 11, 
19-20 (1979).

8 Petitioner repeatedly contends (Br. 13-14, 18, 30, 34-35, 
41) th a t because Section 7117(c) enables a union to litigate 
certain  negotiability issues e ither in a negotiability appeal 
o r in a ULP forum, Section 7117(b) should be construed to 
give the union the same choice with respect to compelling 
need. We agree th a t Section 7117(c) is persuasive evidence 
of congressional intent; bu t fo r the reasons stated, we believe 
th a t the A uthority  has draw n precisely the w rong lesson from 
its provisions. Petitioner also observes (B r. 34-35 & n.30) 
th a t all bu t one of the procedures available under Section 
7117(b) fo r resolving compelling need questions are likewise 
available under Section 7117(c) fo r deciding other negoti­
ability appeals. I t  accordingly asserts th a t the decision to 
include those procedures in Section 7117 (b) cannot be taken 
as evidence th a t Congress intended th a t section to preclude 
alternative relief in a  ULP proceeding. But the Authority 
nowhere responds to  two centra! points. F irs t, as we have 
noted (see pages 23-24, supra),  Section 7117(c) is explicitly 
permissive; it s ta tes th a t the union may  select a negotiability

14 0



26

B. The Decision to Make Section 7117(b) the Only Pro­
cedure for Challenging Compelling Need Serves Im ­
portan t Purposes

Congress had two obvious reasons fo r requiring 
that compelling need issues be determ ined outside the 
ULP process. F irs t, a compelling need inquiry is not 
merely a dispute between the governm ent employer 
and the union th a t is resolved through the m achinery 
of the FLR A ; it is a challenge to the im portance of 
regulations th a t otherwise have the force of law. 
Second, agencies should not be placed in the position 
of adopting regulations a t the ir peril, subject to U LP 
sanctions as a  resu lt of a stra igh tfo rw ard  application 
of a regulation during  the bargain ing  process.

1. O ther negotiability issues—which simply re­
quire the A uthority  (or its delegated representative) 
to “ ‘m easure[ ] ’ specilic and delimited bargain ing  
proposals ‘against applicable law, rules or regulations 
in order to determ ine w hether a given proposal is 
within the duty to barga in ’ ” ( F L R A  v. OPM, 778 
F.2d a t 847 (citations o m itte d ))— are  merely dis­
putes between a p a rticu la r governm ent employer

appeal as an alternative to the ULP forum. Second, the one 
procedural difference between Section 7117(b) and Section 
7117(c) is crucial: in a Section 7117 (b) hearing— but not in 
a Section 7117(c) hearing— the agency is a necessary party . 
Petitioner suggests (B r. 34-35 n.3G) th a t th a t requirem ent 
was designed merely to give the issuing agency “an opportu­
nity to waive the regulation as a b a r to  bargain ing .” B ut the 
agency is already afforded such an opportunity  under Section 
7117(b) (2) (A ); and if it exercises a  w aiver, no compelling 
need hearing  is even held. If  it chooses not to waive, however, 
a hearing is available, and the agency is a necessary p arty — 
not so th a t it m ay enjoy a second w aiver opportunity , bu t for 
the obvious and salu tary  purpose of perm itting  the agency to 
defend the im portance of its own regulation.

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2 7

(such as Aberdeen) and the representative of its 
employees. B ut a  challenge to the “compelling need” 
for a  regulation prom ulgated by an agency (such as 
DOD) or p rim ary  national subdivision (such as DA) 
is a challenge of a different order: it  ought to be re­
solved in a proceeding (1) th a t focuses on the need 
fo r the regulation ( ra th e r  than the p a rticu la r b a r­
gaining d isp u te ) ; (2) th a t is conducted before the 
A uthority  itself; and (3) in which the agency has an 
opportunity to partic ipate  and defend its  regulations.0

The A uthority’s “c rite ria  fo r determ ining com­
pelling need” (5 C.F.R. 2424.11) show how impor­
ta n t it  is th a t the agency itself partic ipate  and de­
fend its regulations in relation to its overall mission. 
U nder petitioner’s “ illustrative c rite ria ,” an agency 
bears the “s trin g en t” (B r. 26) burden to “demon­
s tra te ” , among other things, th a t its “rule or regula­
tion is essential, as distinguished from helpful or 
desirable, to the accomplishment of the mission * * * 
of the agency” (5 C.F.R. 2 4 2 4 .1 1 (a )), or th a t “ the 
rule or regulation is necessary to insure the m ainte­
nance of basic m erit principles” (5 C.F.R. 2424.11 
( b ) ) .* 10 See A F G E  v. F L R A , 730 F.2d a t  1539. In

0 Recognizing the especially in trusive natu re  of the com­
pelling need inquiry, Congress has provided th a t, in the 
absence of a determ ination by the A uthority , compelling need 
may only be found lacking when “ the agency, or p rim ary 
national subdivision, as the case m ay be, which issued the rule 
or regulation inform s the A uthority  in w riting  th a t a com­
pelling.need for the rule or regulation does not ex ist” (5 U.S.C. 
7117(b) (2 )A )) .

10 P etitioner acknowledges (B r. 25) th a t it  imposes the  bur­
den of proof on the agency. See 5 C.F.R. 2424.11; AFGE, 
Social Security Local 3231 & Dep’t of Health & Human Serv­
ices, Social Security Adm’n, 16 F.L.R.A. 47, 48 (1984) ; 
NTEU, Chapter 207 & FDIC Corp., 14 F.L.R.A. 598, 599

1 4 2



28

its decisions, the A uthority  has consistently rejected 
compelling need claims w here agency regulations 
were merely “helpful to the accomplishment of the 
Agency's mission or the execution of its functions” 
but not “essential to those objectives.” N ational 
Fed’n  o f Fed. Employees, Local 11,15 & Alabama A ir  
N a t’l Guard, 16 F.L.R.A. 1094, 1102 (1984). As the 
A uthority  has pu t it, “essentiality  is the m easure” of 
compelling need (N T E U  <& FD IC  Corp., 14 F.L.R.A. 
179, 180 (1984) (em phasis in o rig in a l)) . And under 
th a t rigorous standard , the A uthority  has held th a t 
even if  a “deviation” from  a regulation would “pose 
adm inistrative difficulty, [ th a t would] not in itself 
dem onstrate th a t the regulation meets the compelling 
need c rite ria ” (id. a t  181). Accord AF G E , L oad  
2670 & A rm y  & A ir  Force Exchange Service, 10 
F.L.R.A. 71, 75 (1982).* 11

I t  is hardly su rp ris ing  th a t Congress decided th a t 
the IJLP process was not an appropria te  means to

(1984); AFGE, Local 1928 & Dep’t of the Navy, 2 F.L.R A 
451 (1980).

11 The A uthority ’s predecessor under the Executive Orders, 
the Federal Labor Relations Council, whose regulations gov­
ern ing  compelling need were substantially  the sam e as the 
A uthority ’s presen t regulations (see H. Robinson, Negotiabil­
ity  in the Federal Sector 16 n.31 (1 9 8 1 )), explained th a t its 
compelling need c rite ria  established “a  strin g en t s tan d ard ” 
and th a t they “were designed and adopted to  the end th a t 
in ternal ‘agency regulations not critical to  effective agency 
m anagem ent or the public in te rest’ would be prevented from  
resulting in negotiations a t the local level being ‘unnecessarily 
constricted’ ” (id. a t 17 (em phasis in the  o rig in a l)) . In view 
of the A uthority’s approach to compelling need, it is hardly 
su rp rising  th a t petitioner could find only 12 out of 85 cases 
(see Br. 26-27 & n.24), in which a claim of compelling need 
was upheld by the FLRA.

1 4 3



29

determ ine compelling need: a U LP proceeding is ill- 
suited to careful focus on the reasons and justifica­
tions fo r an agency’s regulations. F irs t, the partici­
pants are w rong: a  U LP proceeding m ust be initi­
ated and prosecuted by the General Counsel, see 
Turgeon  v. F L R A , 677 F .2d 937, 939-940 (D.C. Cir. 
1982); S. Rep. 95-969, 95th Cong., 2d Sess. 102 
(1978), who is expressly denied any role in a Section 
7117(b) p roceed ing ;^  along the way, the Authority 
or its delegated representative may perm it “any per­
son * * * to intervene in the hearing  and to present 
testim ony” under inform al rules of evidence th a t are 
not set by sta tu te  or common law (5 U.S.C. 7118(a) 
( 6 ) ) ;  while the agency th a t issued the regulation 
has the rig h t to fde an answ er in and appear a t the 
U LP proceeding (5 U.S.C. 7 1 1 8 (a ) (3 ) ) ,  it  is not a 
necessary party , and the employer a t  the local level 
is typically the litigating  defendant; and under the 
U LP provisions, the hearing  is conducted by the Au­
thority or “any individual employed by the Authority 
fo r such purpose” (5 U.S.C. 7118). Second, in con­
tra s t to a Section 7117(b) hearing, which focuses ex­
clusively on the issue of compelling need and which 
“shall be expedited to the extent practicable” (Sec­
tion 7 1 1 7 (b ) (3 ) ) , a  U LP proceeding m ust resolve 
other issues and decide w hether “ the preponderance 
of the evidence received dem onstrates th a t the 
agency or labor organization named in the complaint 
has engaged in or is engaging in an u n fa ir  labor 
practice” (5 U.S.C. 7118(a) ( 7 ) ) .  12

12 The evident reason fo r th is is th a t the General Counsel, 
as the prosecutor in the ULP forum , is chiefly responsible for 
the presentation of the m erits of u n fa ir labor practice com­
plaints and should not have the additional duty to assist in 
resolving the threshold question of compelling .need for agency­
wide regulations.

144



3 0

2. An agency should not have to adopt regulations 
a t its peril. In  petitioner’s view (see Defense Logis­
tics Agency  v. FLU  A , 754 F.2d 1003 (D.C. Cir. 
1985)), whenever an agency issues a  new regulation 
a component may la te r be found guilty  of an u n fa ir  
labor practice if it  applies the regulation s tra ig h tfo r­
w ardly during  collective bargain ing  bu t there is la te r 
found to be no compelling need fo r the regulation. 
T hat is surely w rong: an u n fa ir  labor practice find­
ing under Section 7118 exposes the agency to various 
retroactive sanctions (see 5 U.'S.C. 7 1 1 8 (a ) (7 ) ;  De­
fense Logistics Agency, 754 F.2d a t  1006 n .7 ) ; as the 
court of appeals observed in F ort Belvoir (Pet. App. 
62a), the A uthority ’s approach “would ham string  an 
agency’s ability  to institu te  new regulations even 
when it  perceives a compelling need fo r the change,” 
and th a t resu lt could not be avoided because the A u­
tho rity ’s construction would “allow the expedited ne­
gotiability appeal procedure to be bypassed whenever 
a new regulation is institu ted  or an old one is modi­
fied” (ib id .). By contrast, a determ ination of no 
compelling need under Section 7117(b) results only 
in a prospective order to bargain  (see Defense Logis­
tics Agency, 754 F.2d a t 1006 n .7 ), which “enables a 
governm ent agency to act in fu rtherance  of its essen­
tial mission w ithout facing the charge and possible 
sanctions of an u n fa ir  labor practice” (Pet. App 
62a).

€ . The H istory  of T itle  V II Confirms T h a t Section 7117(b) 
Provides the Exclusive Procedure fo r Challenging 
Com pelling Need

Petitioner asserts (B r. 14-15, 20-24, 37-42) th a t 
its construction of T itle V II accords with “established 
Executive O rder practice which predated the S ta tu te” 
(B r. 37). Beyond that, however, the A uthority  finds

145



81

“no indication * * * in [the] legislative h istory  tha t 
Congress intended [Section 7 1 1 7 (b )] to foreclose 
resolution of defenses of nonnegotiability, including 
compelling need issues, in un ila tera l change u n fa ir 
labor practice cases” (B r. 13). Both propositions are 
mistaken. The Executive O rders established a sep­
ara te  and d istinct procedure fo r resolving compelling 
need claims, and there is no reason to believe th a t 
under “established Executive O rder practice” ULP 
proceedings were intended to be an acceptable a lte r­
native. Moreover, the legislative h istory of Title 
V II— fa r  from offering “no in d ica tio n [s]” (B r. 30) 
on the question— confirms th a t Congress considered 
the very issue presented in this case and rejected the 
in terpretation  offered by the A uthority. Although it 
created alternative procedures— an expedited appeal 
process in addition to the U LP forum — to decide 
other negotiability issues, Congress indicated th a t it 
fully intended to make the procedure established by 
Section 7117(b) the exclusive means for resolving 
compelling need questions.

1. “P rio r to enactm ent of T itle V II, labor-m an­
agem ent relations in the federal sector were governed 
by a program  established in a 1962 Executive O rder” 
{B A T F  v. F L R A , 464 U.S. a t  91 (footnote omit­
ted) ), and amended thereafter by subsequent Execu­
tive Orders (see id. a t  91 n .2 ). F o r the g rea ter 
portion of th a t period, m atters covered by agency­
wide regulations were entirely non-negotiable, re­
gardless of the compelling need fo r the regulation. 
Executive O rder No. 11,491, issued on October 29, 
1969, stated th a t agencies and labor organizations 
could “confer in good fa ith  w ith respect to personnel 
policies and practices” bu t only to the extent “set 
forth  in * * * published agency policies and regula­

146



32

tions” (§ 1 1 (a ) , Leg. H ist. 1250)). While a labor 
organization could appeal to the Federal Labor Rela­
tions Council, predecessor of the FLRA, if  it  believed 
th a t a bargain ing  proposal did not actually conflict 
w ith a p a rticu la r agency regulation (§ 11(c) (4) ( i) ,  
Leg. H ist. 1251), it  could not challenge the compel­
ling need for the regulation. And only the Council 
could decide negotiability issues; in a  1971 Report, 
the Council expressly rejected a proposal to amend 
the Executive O rder to perm it negotiability issues to 
be processed in u n fa ir  labor practice proceedings 
{Leg. H ist. 1266).

In Jan u a ry  1975, the Council issued a  R eport and 
Recommendations th a t proposed a num ber of am end­
ments to the Executive Order. See Leg. H ist. 1283- 
1335. Two separate  Council recommendations, u lti­
mately adopted as p a r t  of Executive O rder No. 
11,838 in F eb ruary  1975 {see Leg. H ist. 1338, 1339), 
are pertinent. The first recommendation w as to mod­
ify the ex tent to which agency regulations could bar 
negotiations. The Council observed th a t under the 
existing O rder “m eaningful negotiations a t  the local 
level on personnel policies and practices and m atters 
affecting working conditions have been unnecessarily 
constricted in a  significant num ber of instances by 
higher level agency regulations not critical to the ef­
fective agency m anagem ent or the public in te rest” 
{Leg. H ist. 1306-1307). The Council recognized th a t 
“agency regulatory  au thority  m ust be re ta ined” 
{ibid.), bu t it  concluded th a t “modifications in the 
present role of in ternal agency regulations as a bar 
to negotiations should be adopted, consistent w ith 
essential agency requirem ents” {id. a t 1307). The 
Council therefore recommended th a t agency reg­
ulations “bar negotiations a t  the local level only if

147



33

a ‘compelling need’ fo r such regulations exist” (id. at 
1306).

To implement this new rule, the Council proposed 
a detailed set of procedures. F irs t, “disputes as to 
w hether an agency regulation * * * meets the stand­
ard  of ‘compelling need’ should be resolved by the 
Council on a  case-by-case basis in negotiability ap­
peals filed under section 11(c) of the O rder” (Leg. 
H ist. 1307). Second, consistent w ith a  policy of def­
erence to agency prerogatives, the Council proposed 
th a t a negotiability appeal not be en tertained  “unless 
the labor organization first requests * * * an excep­
tion to the regulation from  the agency head and such 
exception is denied or not acted upon” (id. a t 1310). 
Finally, to avoid “an unnecessary m ultiplication of 
challenges * * * [ th a t]  would unreasonably burden 
and impede the effective operation of the program ,” 
the Council recommended th a t compelling need ap­
peals “may be filed only by the national president of a 
labor organization (or his designee) or the president 
of a  labor organization not affiliated w ith a national 
organization (o r his designee)” (id. a t  1311).

The Council’s second recommendation, likewise 
adopted in the Executive Order, proposed a modifica­
tion of the portion of Executive O rder No. 11,491 
under which only the Council was authorized to resolve 
negotiability questions. See Leg. H ist. 1323-1329. Be­
cause of th a t exclusive authorization to the Council, 
the A ssistant Secretary of Labor, who was otherwise 
authorized to decide charges of u n fa ir  labor prac­
tices (see id. a t  1325), had “consistently ruled that 
a pa rty  may not utilize the u n fa ir  labor practice pro­
visions * * * as a means for resolving negotiability 
disputes” bu t could only file an u n fa ir  labor practice 
charge “where the m atte r excluded from negotiation

1 4 8



34

has already been determ ined to be negotiable through 
the procedures set fo rth  in section 11(c) of th [is]  
O rder” (ib id .). The Council concluded th a t th a t pro­
cedure involved “ [u n n e c essa ry  additional steps” 
(ibid.) and noted th a t negotiability issues th a t arise 
in U LP proceedings “a re  often inextricably in ter­
twined w ith disputed issues of fac t which m ust be 
resolved in order to arrive  a t  a conclusion” (id. a t 
1326-1327). The Council therefore recommended 
th a t where a negotiability issue arises “as a resu lt 
of a  respondent’s alleged refusal to negotiate by uni­
laterally  changing an established personnel policy or 
practice” the A ssistan t Secretary should be au thor­
ized to resolve th a t issue during  a U LP proceeding 
(id. a t 1324).

The A uthority  contends (B r. 40) th a t Executive 
Order No. 11,838, adopting those two recommen­
dations, dem onstrates th a t p rio r to T itle  V II the 
U LP process was available fo r the resolution of 
compelling need issues th a t arose from  unilateral 
changes in conditions of employment. B ut the “com­
pelling, need” and “negotiability” changes effected by 
Executive O rder No. 11,838 were entirely  separate 
changes intended to promote very different ends. 
On the one hand, by introducing the compelling need 
standard , the Executive O rder adopted a limited ex­
ception to the principle th a t agency regulations 
should be a complete bar to negotiations; but to en­
sure th a t “agency regulatory au thority  [w as] re­
tained” (Leg. H ist. 1307), the O rder provided th a t 
compelling need questions would be presented only on 
limited occasions and only to the Council. On the 
other hand, the g ra n t of new au thority  to the A ssist­
an t Secretary to resolve negotiability issues in the 
course of an u n fa ir  labor practice determ ination did

1 4 9



35

not advert to the issue of compelling need. This new 
au thority  was designed to enable the A ssistant Sec­
re ta ry  to avoid certain  inefficiencies th a t had arisen 
during U LP proceedings under the previous Execu­
tive Order. There is no suggestion anywhere in 
Executive Order No. 11,838 th a t the A ssistant Sec­
re ta ry  was expected to assume any responsibility for 
the newly-created compelling need determ inations. 
Only the Council was expressly given th a t respon­
sibility.

2. The legislative history of Title V II itself con­
firms th a t Congress never intended the U LP process 
to be an alternative means of resolving compelling 
need disputes. Indeed, Congress considered (in  a 
slightly different context) the very question pre­
sented in this case and rejected petitioner’s in ter­
pretation.

a. On Ju ly  31, 1978, the House Committee on 
Post Office and Civil Service reported H.R. 11280, 
95th Cong., 2d Sess., entitled “A Bill To reform  the 
civil service laws” (Leg. Hist. 372). H.R. 11280 
was sim ilar in most respects to the final legislation 
and served as the model on which Title V II was 
based.

Section 7117 of H.R. 11280, governing the “duty 
to bargain  in good fa ith ” and “compelling need,” 
differed in two principal respects from the compar­
able provision in the present Act (Leg. Hist. 409). 
F irst, unlike the present Act, Section 7117 of H.R. 
11280 placed no lim its on the duty to bargain  about 
m atters covered by agency-wide regulations. Sec­
ond, H.R. 11280 did not entirely preclude negotiation 
over m atters th a t are  the subject of Government­
wide rules and regulations (see 5 U.S.C. 7117 
( a ) ( 1 ) ) ;  instead, employing the language now

1 5 0



3 6

found in Section 7 1 1 7 (a )(2 )  as enacted, Section 
7117 of II.R. 11280 authorized negotiation over 
Government-wide rules where “ the A uthority  has 
determined under subsection (b) of this section th a t 
no compelling need (as determ ined under regulations 
prescribed by the A uthority) exists.” Leg. H ist. 409. 
Section 7117(b) of II.R. 11280 then set out the pro­
cedures for determ ining compelling need— proce­
dures essentially indistinguishable from  the ones 
presently embodied in Section 7117(b) as enacted. 
See Leg. H ist. 409-410. In short, the version of Sec­
tion 7117 proposed in H.R. 11280 contained the same 
compelling need language and procedures th a t were 
ultim ately enacted, but did so in the context of 
government-wide— not agency-wide— regulations.

In its report accompanying H.R. 11280, the House 
Committee addressed, in the context of the provision 
as it  then stood, the question w hether u n fa ir  labor 
practice proceedings would be an available means for 
resolving compelling need issues. The explicit an­
swer was no. The Report states (H .R . Rep. 95-1403, 
95th Cong., 2d Sess. 50 (1978), reprinted in  Leg. 
Hist. 696 (em phasis a d d ed )) :

The committee intends th a t disputes concerning 
the negotiability of proposals and m atters a f­
fecting working conditions, except fo r  questions 
of “compelling need” under section 7117, be re­
solved through the fding and processing of un­
fa ir  labor practice charges under section 7116 
and section 7118.

W orking w ith language nearly  identical to the pres­
ent version of Section 7117 (except th a t it was con­
cerned w ith compelling need fo r government-wide 
ra ther than agency-wide regulations), the House 
Committee thus in terpreted the language in a way

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87

th a t is flatly inconsistent w ith the position advanced 
by the A uthority  in this case: ord inary  negotiability 
questions should be resolved in the U LP. process, but 
compelling need questions were to be resolved in pro­
ceedings provided fo r in Section 7117.13 Emphasizing 
the point, the Report fu r th e r stated th a t under Sec­
tion 7117(b) the A uthority  should “hold a hearing 
(in  accordance with regulations it shall prescribe) 
whenever an exclusively recognized labor organiza­
tion alleges th a t no compelling need exists for a 
Government-wide rule or regulation which an  agency 
has invoked as a b a r to negotiations on a m atter” 
(H.R. Rep. 95-1403, supra, a t  51-52; Leg. H ist. 697- 
698 (emphasis ad d ed )). F u rth e r distinguishing the 
compelling need and U LP procedures, the Committee 
explained th a t a t  the hearings under Section 7117(b) 
“ [t]h e  A uthority’s General Counsel m ay not be a 
p a rty  to the proceeding (as the General Counsel 
would be in an u n fa ir labor practice case )” (H.R. 
Rep. 95-1403, supra, a t 52; Leg. H ist. 698).

b. On September 13, 1978, the House adopted an 
amendm ent to H.R. 11280, sponsored by Congress- * VII

13 The in terpretation  made by the House Committee is the 
appropriate one to apply to  T itle V II as enacted. When Title
VII emerged from  conference, the conferees adopted the ver­
sion of Section 7117 passed by the House. See H.R. Conf. Rep. 
95-1717, 95th Cong., 2d Sess. 158 (1978). Discussing the 
compelling need issue, Congressman Ford, a conferee and 
“a m ajor partic ipan t in the fashioning of the House language 
on Title V II” (Leg. Hist. 989 (Rep. F o rd ) ) ,  explained that 
“ [ t]h e  House committee’s description of ‘compelling need’ 
has continued to be the intention behind this provision” (id. 
a t 992), and he reported th a t the Conference Committee was 
correct when it stated  th a t in adopting Section 7117 Congress 
had “ ‘follow [ed] the House approach throughout th  [e] sec­
tion’ ” (Leg. Hist. 996).

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38

man Udall, whose guiding purpose was to “meet 
some of the legitim ate concerns of the Federal em­
ployee unions as an in tegral p a r t of w hat is basically 
a bill to give m anagem ent the power to m anage and 
the flexibility it  needs” {Leg. H ist. 923 (Rep. 
U d a ll)) . The Udall am endm ent made three p e rti­
nent changes to the tex t of Section 7117, producing 
the version ultim ately enacted by Congress in Title 
VII. Two of the changes applied to government- and 
agency-wide regulations; in each case the amend­
m ent narrow ed the scope of the duty  to bargain .14 
Subsection ( a ) ( 1 )  made “Government-wide rules or 
regulations an absolute b ar to negotiations” {Leg. 
H ist. 927). Subsection ( a ) ( 2 )  provided in pertinent

14 P etitioner acknowledges (Br. 23-24) th a t the Udall 
am endm ent reduced the scope of bargain ing  over m atters 
governed by governm ent- and agency-wide regulations. Jt 
contends, however, th a t  in two other respects the  am endm ent 
“broadefned] bargain ing  rig h ts” (B r. 24). In neither of these 
o ther respects is the A uthority  correct. F irs t, i t  was not the 
Udall am endm ent th a t made it  an u n fa ir labor practice for 
an agency to enforce a regulation if i t  conflicted w ith a  col­
lective bargain ing  agreem ent th a t pre-dated the regulation 
(ibid.). The identical language was in II.R . 11280, and the 
Udall am endm ent made no change. See Leg. Hist. 400, 915, 
926. Second, the am endm ent did not “broaden” the duty to 
bargain  when it perm itted unions th a t represen t a m ajority  
of the issuing agency’s employees to bargain  over m atters 
governed by a regulation justified by compelling need. T hat 
exception was merely a qualification of the m ore im portan t 
change made by the Udall am endm ent—abandoning the lan­
guage of II.R. 11280, which would have authorized bargain­
ing over m atters covered by any agency-wide regulation, 
regardless of compelling need. F o r those reasons and others, 
critics of the Udall am endm ent— fa r  from  viewing it, in peti­
tioner’s words, as effecting “broader bargain ing  rig h ts” (Br. 
2 4 )— declared th a t the proposal “ was w ritten  long ago by the 
Business Roundtable” (Leg. Hist. 930 (Rep. C lay )).

1 5 3



39

p a rt th a t “agency rules or regulations are  a b a r to 
negotiations * * * unless a finding of ‘no compel­
ling need’ for the rule or regulation is made by the 
A uthority” {Leg. H ist. 927).

The most im portan t change made by the Udall 
am endm ent was to add w hat is now Section 7117(c) 
of Title VII. As noted above (see pages 23-24, supra), 
th a t Section provides “an expedited appeals system 
fo r resolving negotiability disputes other than  those 
involving ‘compelling need’ determ inations” {Leg. 
H ist. 927). See generally F L R A  v. OPM, 778 F.2d 
a t  845-846 & n.8; National Fed’n  of Fed. Employees, 
Local 1167 v. F L R A , 681 F.2d a t 889-890 & n.5. 
U nder H.R. 11280 as initially reported, negotiability 
disputes other than  compelling need could only “be 
resolved through the u n fa ir  labor practice mecha­
nism ” {Leg. H ist. 927). The Udall amendm ent cre­
ated an alternative approach to the U LP process, 
providing “ th a t an exclusive representative may ap­
peal an agency’s allegation of non-negotiability to 
the A uthority” {ibid.). The purpose of Section 7117 
(c) was to ensure, to the extent possible, “ th a t ne­
gotiability disputes not be subject to the cumbersome 
u n fa ir  labor practice procedures, bu t be resolved 
through the stream lined Section 7117(c) process.” 
AF G E  v. F L R A , 715 F.2d 627, 630 (D.C. Cir. 
1983). B ut Congress made it clear ( “may appeal” ) 
th a t this was only an optional alternative to raising  
the issue in a U LP proceeding: when Congress in­
tended .to allow alternative procedures, it  knew how 
to do so. Cf. Lehm an  v. N akshian, 453 U.S. 156, 
162 (1981).

c. Despite the foregoing, the A uthority  claims to 
find no evidence in the legislative history th a t Con­
gress intended to depart from w hat it calls the “basic

154



4 0

tenet of labor law th a t an employer assumes the risk 
of having breached [the duty  to bargain] whenever 
the employer unilaterally  changes working condi­
tions w ithout bargain ing’' (B r. 29). T h a t claim mis­
states the significance of private-sector labor law for 
the present issue.

In general, petitioner g reatly  overstates the extent 
to which Congress intended to apply private-sector 
labor law principles when it  enacted T itle VII. 
Cf. BA  TF  v. FLU  A , 464 U.S. a t  103. The s ta tu te  
proclaims a t the outset th a t its purpose is “ to p re­
scribe certain  righ ts and obligations of the employees 
of the Federal Government” while a t the same time 
“estab lish[ing] procedures which are designed to 
meet the special requirem ents and needs of the Gov­
ernm ent” (5 U.S.C. 7 1 0 1 (b )). As President C arter 
explained when he transm itted  the proposed legisla­
tion to Congress, Title V II w as designed “to make 
Executive Branch labor relations more comparable 
to those of private business” while still deferring  to 
“ the param ount public in terest in the effective con­
duct of the public’s business” {Leg. H ist. 626). 
“Congress recognized th a t it could not merely tra n s ­
p lant private employment s ta tu tes  to the public em­
ployment context” (A F G E  v. F L R A , 778 F.2d a t 
852), and “the degree of relevance of private sector 
case law to public sector labor relations will vary  
g reatly  depending upon the p a rticu la r s ta tu to ry  pro­
visions and legal concepts a t issue” (Library o f Con­
gress v. F L R A , 699 F.2d a t 1287). See generally 
W ellington & W inter, The L im its  o f Collective Bar­
gaining in  Public Em ploym ent, 78 Yale L.J. 1107 
(1969).

In particu lar, private-sector principles are not 
very helpful in determ ining the scope of a govern-

155



41

m ent employer’s duty to bargain . "The scope of col­
lective bargain ing  is f a r  broader in the p rivate sec­
tor, and the bargain ing  s ta tu s  of any given subject 
is determ ined by different s ta tu to ry  provisions and 
by different policy considerations” {Library o f Con­
gress v. F L R A , 699 F.2d a t 1287 (footnote omit­
te d )) . Indeed, petitioner relied on th a t basic distinc­
tion in N T E U , Chapter 207 & FDJC Corp., 14 
F.L.R.A. 598 (1984). In th a t case the Authority 
rejected the views of its dissenting member, who had 
suggested th a t a p a rticu la r negotiability dispute be 
left to the collective bargain ing  process, ju s t as if 
would have been had the "m a tte r * * * arisen in the 
private sector context” (14 F.L.R.A. a t 612). The 
m ajority  retorted, " it  should be clear by now, over 
5 years having passed since the enactm ent of the 
S tatute, th a t the legal fram ew ork which governs our 
decision today was ‘designed to meet the special 
needs and requirem ents of governm ent.’ P a r t of the 
legal fram ew ork which governs our decision today 
is section 7 1 1 7 (a )(2 )  * * *. O ur colleague favors
‘free’ collective bargaining. We favor collective b a r­
gaining w ithin the s ta tu to ry  fram ew ork.” Ibid. 
(footnote om itted).

I). P e titioner’s Reliance on “C onsiderations of Public 
Policy” is M isplaced

All bu t ignoring the text, and finding nothing in 
the history of Title V II to support its position, peti­
tioner relies on two "considerations of public policy” 
(B r. 42). F irst, it states th a t “ it is in the interest 
of the efficient and effective adm inistration of the 
S tatu te  th a t all issues which arise in an u n fa ir  labor 
practice dispute be resolved in th a t u n fa ir  labor 
practice dispute” {id. a t 42-43). Second, it  asserts 
th a t “ [tjh e re  are no draw backs” to its approach, 
since "regardless of w hether the compelling need is­

1 5 6



42

sue is processed as p a r t of a un ilateral change u n fa ir  
labor practice case, agencies rem ain able to * * * 
enforce, as a b a r to collective bargaining, any regula­
tion which Congress intended to b a r collective b a r­
gain ing” (id. a t 43).

P etitioner’s efficiency claim m isdirects the eye. 
There is no reason to think it is efficient to resolve 
“compelling need” along w ith all other issues in a 
U LP proceeding, ra th e r than  in the expeditious sepa­
ra te  appeal Congress directed the A uthority  to pro­
vide for. And if Congress thought it  best to resolve 
all issues in a U LP proceeding, i t  is hard  to see why 
it enacted section 7117(b) to resolve compelling need 
claims, or why it established Section 7117(c) as an 
alternative means of resolving all other negotiability 
questions. The answer, plainly, is th a t Congress 
recognized th a t a separate, expedited procedure for 
deciding compelling need issues would serve the 
la rger efficiency goal of perm itting  the issuing 
agency to defend its regulations, to the FLRA itself, 
w ithout the adversarial baggage of the U LP process. 
T hat goal— and not petitioner’s assertion of “unified 
processing” (Br. 4 3 )— is intim ately tied to the ex­
plicit policy of T itle V II “ to prescribe certain  rights 
and obligations of the employees of the Federal Gov­
ernm ent” while a t the same time “establish[ing] 
procedures which are designed to meet the special 
requirem ents and needs of the Government” (5 
U.S.C. 7 1 0 1 (b )).

The A uthority  is on no firm er ground when it 
casually contends th a t there are  “no draw backs” 
(B r. 43) to its approach in this case. T h a t claim 
is, first of all, irrelevant, since Congress is en­
titled to expect its s ta tu tes to be obeyed, even when 
there are “no draw backs” associated w ith disobedi-

157



43

enoe. Cf. A F G E  v. F L IiA , 715 F.2d a t 627, 630 (re ­
jecting as a “contravenftion] [of] the clear s ta tu ­
tory m andate” FL R A ’s assertion th a t it had a “dis­
cretionary power” to deny appeals taken under Sec­
tion 7 1 1 7 (c )). B ut petitioner’s claim is also mis­
taken. Perm itting  the issuing agency to defend its 
regulations in a separate proceeding before the Au­
thority  ensures th a t the best defense of those regula­
tions will be made, and th a t the agency will not risk 
conflicting compelling need determ inations arising 
from scattered U LP proceedings a t the local level.18 
Exposing the agency to U LP liability, and retroac­
tive sanctions (see 5 U.S.C. 7 1 1 8 (a ) (7 ) ) ,  d isrupts 
the regulatory  process and disserves the evident in­
ten t of Congress tha t the provisions of Title V II “be 
interpreted in a m anner consistent with the require­
m ent of an effective and efficient Government” (5 
U.S.C. 7 1 0 1 (b )).

18 The A uthority  recognized th a t point in Association of 
Civilian Technicians, Montana A ir Chapter V. F'LRA, supra. 
In th a t case a union raised an equal protection challenge 
to Section 7 1 1 7 (a )(3 ) of T itle VII, which perm its an  ex­
clusive representative to negotiate about m atters covered 
by an agency regulation— regardless of compelling need— 
when it “ represents an app ropria te  un it including not less 
than a m ajority  of the employees in the issuing agency * * * 
to whom the rule * * * is applicable.” The union asserted 
th a t there was no rational basis fo r d istinguishing between 
large and small labor organizations. The A uthority  persuaded 
the court of appeals (see 756 F.2d a t 178) th a t the distinction 
in Section 7117(a) (3) was rational, argu ing  in its brief that 
“Congress’ action ensured th a t an agency’s regulations for 
which there is a  compelling need would not be subject to dif­
ferent sets of negotiations in num erous bargain ing  units 
throughout the agency, w ith the  potential fo r such negotia­
tions yielding widely d ispara te  results throughout the agency” 
(FLItA  Br. a t 22 (cited a t  756 F,2d a t 178 n .2 9 )).

1 5 8



44

We accept the general proposition th a t “ the A u­
thority  is entitled to considerable deference when it 
exercises its ‘special function of applying the general 
provisions of the Act to the complexities’ of federal 
labor relations’’ (B A T F  v. F L R A , 464 U.S. a t 97 
(citation o m itted )). B ut as the Court explained 
when it rejected the A uthority’s in terpreta tion  of 
Title V II in the B A T F  case, “ the ‘deference owed to 
an expert tribunal cannot be allowed to slip into a 
judicial inertia  which results in the unauthorized 
assum ption by an agency of m ajor policy decisions 
properly made by Congress’ ” (ibid, (citation omit­
te d ) ) . In the present case, as in B A T F , “ the 
FL R A ’s decision * * * neither rests on specific con­
gressional in ten t nor is consistent w ith the policies 
underlying the Act” (id. a t 98 n .8 ). Reliance on 
untethered and in any event erroneous “considera­
tions of public policy” is no substitu te  fo r the text 
and history of the statu te. And deference to the A u­
thority ’s discretion in this case comes a t the con­
siderable expense of the more fundam ental discretion 
of other federal agencies—whose capacity to regulate 
the ir own affairs would be adversely affected by the 
A uthority’s construction of T itle VII.

1 5 9



45

CONCLUSION

The judgm ent of the court of appeals should be 
affirmed.

Respectfully submitted.

C h a r l e s  F ried  
Solicitor General

R i c h a r d  K. W il l a r d

Assistant Attorney General
Louis R . C o h e n  

Deputy Solicitor General
L a w r e n c e  S. R o b b i n s  

Assistant to the Solicitor General
W i l l i a m  R a n t e r  
D e b o r a h  R . K a n t  

Attorneys

D e c e m b e r  1987

&  U. S. GOVERNMENT PRINTING OEMCI; 1907  2 0 2 0 3 7  6 0 1 7 6

160



N o .  8 6 - 1 7 1 5

3in tlje Supreme Court of tljc Cliuteb states
O c t o b e r  T e r m , 1987

F e d e r a l  L abor  R e l a t io n s  A u t h o r it y ,
PETITIONER

V.

A b e r d e e n  P ro v ing  G r o u n d , 
D e p a r t m e n t  o f  T h e  A rmy

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

R uth  E . P e t e r s *
Solicitor

W i l l i a m  E . P e r s i n a  
Deputy Solicitor 

A r t h u r  A . H o r o w i t z  
Associate Solicitor 

R o b e r t .!, E n g l e i i a r t  
Attorney

Federal Labor Relations Authority 
500 C Street, SIP.
Washington, D C. 201,21)
(202) 382-0781

* Counsel of Record

161



A FOE v. FLU A ,712 F.2d 640 ...........................................  8
AFGE, Local 2303 v. FLRA.HUy F.2<l 718 . .................... 4
Defense Logistics Agency v. FLRA.TbA F.2d 1003 .........10, 11
Department of Defense v. FLU A, 650 F.2d 1140, eerl.

denied, 455 U.S. 045 ......................................................... 8
Department of the A ir Force, Scott A ir  Force Base,

Illinois, 5 F.L.R.A. 0 (1 0 8 1 )............................................ 8
FLKA v. Social Security Administration, 753 I'1.2d

156 .......................................................................................  7
FLKA v. United States Department, of the A ir  Force,

Tinker A ir  Force Base, 735 F.2d 1513..........................  7
Kelly v. Robinson, No. 85-1033 (Nov. 12, 1086).............  4, 5
Maslro Plastics Corp. v. NLRB, 350 U.S. 270 ...............  5
National Labor Relations Board Union v. FLRA, No. 

86-1624 (D.C. Cir. Dec. 4, 1087) (to be reported a t 834
F.2d 101) ............................................................................  2

Offshore Logistics, Inc. v. Tallentire, No. 85-202 (June
2 3 ,1 0 8 6 )..............................................................................  5

United States v. Heirs of Boisdore, 8 How. 113 (1840) . . 5

Statutes:

The Federal Service Labor Management Relations 
S tatute, as amended, 5 U.S.C. 7101-7135 (1082 &
Supp. IV 1086)

5 U.S.C. 7106 .............................................................. 5
5 U.S.C. 7 1 1 7 ..............................................................  6
5 U.S.C. 7117(a)(2) .....................................................  4
5 U.S.C. 7117(b) .........................................................passim
5 U.S.C. 7117(b)(1).....................................................  4
5 U.S.C. 7117(b)(2).....................................................  3
5 U.S.C. 7117(b)(2)(A) ...............................................  6
5 U.S.C. 7117(c) .........................................................passim
5 U.S.C. 7117(c)(1)......................................................  3, 4
5 U.S.C. 7117(c)(2).....................................................  4
5 U.S.C. 7117(c)(6).....................................................  4
5 U.S.C. 7 1 1 8 ..............................................................  3
5 U.S.C. 7122 ..............................................................  3

T A B L E  O F  A U T H O R IT IE S

C ases:  I’a ge

(!)

1 6 2



11

Miscellaneous: Page
Executive Order 11491, as am en d ed .................................  8 ,9

S 4(c)(2) ............................................................................  9
§ 11(e) ...........................................................  9
S 1 l(c)(4)(ii)......................................................................  9
§ 1 1 (d )............................................................................... 9

Executive Order 11888, 3 C.F.R. 957 (1971-1975
co m p .).......................... ........................................................  8, 9

H R. Rep. 95-1403, 95th Cong., 2d Sess. (1978).............  0
S. Rep. 95-909, 95th Cong., 2d Sess. (1978).................... 8
124 Cong. Ree. 29199(1978)..............................................  6
5 C.F.R. 2424.5 ...................................................................... 2
Labor Management Relations in the Federal Serv­

ice, January 1975: Report and Recommendations of 
the Federal Labor Relations Council on the Amend­
ment of Executive Order 11491, as Amended, 
reprinted in Sub comm, on Postal Personnel and 
Modernization of the House Comm, on Post Office 
and Civil Service, 9(5th Cong., 1st Sess., Legislative 
History of the Federal Service Labor-Management 
Relations Statute, Title VI! of the Civil Service Reform 

Act of 1978, (Comm. Print No. 96-7)...........................5, 6, 8, 11

1 6 3



3ln tl)c Suprem e C o u rt of tlje llm 'lcb j&lnlctf
O c t o b e r  T e r m , 1987 

No. 86-1715
F e d e r a l  L a bo r  R e l a t io n s  A u t h o r it y , 

p e t it io n e r

v.

A b e r d e e n  P roving  G ro u n d ,
D e p a r t m e n t  o f  T h e  A rmy

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

U nder the A uthority’s construction of its enabling 
statu te , the Authority is empowered to resolve, in a uni­
lateral change unfair labor practice case, an employer 
agency's defense that bargaining is barred  by an agency 
regulation for which a compelling need exists. Aber­
deen’s argum ents to the contrary  in its brief reveal 
several fundam ental misconceptions about the fram e­
work established by the S ta tu te  for collective bargain­
ing in the federal sector. First, Aberdeen’s a ttem p t to 
con trast Sections 7117(b) and (c) by arguing tha t the 
S ta tu te  allows the union in all cases to choose between 
processing Section 7117(c) negotiability issues under 
e ither the negotiability appeal procedure or the unfair 
labor practice procedure is dem onstrably incorrect. 
Next, Aberdeen attem pts to support its proffered view 
of the statu tory  language with policy argum ents which 
simply do not fit with the scope of collective bargaining 
established by the S tatu te . Finally, and with no support

(1)

1 6 4



2

from the legislative history or pre-S tatu te  Executive 
O rder practice, Aberdeen’s view of the S ta tu te  
d isregards an established tenet of federal sector labor 
law th a t if' it subsequently can be shown th a t the 
employing agency changed working conditions but 
refused to bargain over m atters which were properly 
within the bargaining obligation, the employing agency 
has com m itted an unfair labor practice.

A. Aberdeen, in its effort to read the S ta tu te  as pro­
hibiting the A uthority from ever resolving Section 
7117(h) negotiability issues outside the Section 7117(b) 
negotiability appeal procedure, a ttem p ts a construction 
of Section 7117(c). Aberdeen argues (Aberdeen Br. 
22-25) th a t Congress intended to con trast the operation 
of Section 7117(c) with Section 7117(b) by conferring 
upon the union the option of processing Section 7117(c) 
negotiability issues as either negotiability appeals or un­
fair labor practices. Aberdeen is simply wrong. The 
union does not, absent a dispute involving an employing 
agency’s actual or contem plated change in conditions of 
employment, have the option of processing a Section 
7117(c) negotiability dispute as an unfair labor practice. 
N ational'Labor Relations Board Union v. F L R A , No. 
86-1024 (D.C. Cir. Dec. 4, 1987) slip op. 16-22 (to be 
reported a t  884 F.2d 191) (noting, am ong o ther things, 
the consistency of the A uthority’s construction of Sec­
tion 7117 with Executive O rder practice). As specifical­
ly stated  in the A uthority’s regulations, which govern 
the resolution of both Section 7117(b) and Section 
7117(c) negotiability appeals: “Cases which solely in­
volve an agency’s allegation th a t the duty to bargain in 
good faith does not extend to the m atter proposed to be 
bargained and winch do not involve actual or con­
templated changes in  conditions o f employment m ay  
only be f i le d  und er  \the n eg o tia b ility  appeal 
procedures]” 5 C.F.R. 2424.5 (emphasis added). See N a­
tional Labor Relations Board Union v. F LR A , supra , 
slip op. 15-16. 165



3

The reasoning th a t Aberdeen uses in arriv ing a t this 
e rro r highlights the failing of Aberdeen’s approach to 
this entire case. Section 7117(c)(1) of the S ta tu te  states, 
in part, “if an agency involved in collective bargaining 
with an exclusive representative alleges th a t the duty to 
bargain in good faith does not extend to any m atter, the 
exclusive representative may appeal the allegation [of 
nonnegotiability] to the Authority in accordance with 
the provisions of this subsection.” 5 U.S.C. 7117(c)(1). 
Aberdeen seizes upon the phrase “the exclusive repre­
sentative may appeal” (Aberdeen Br. 23-24). Aberdeen 
con trasts  this with the phrase in Section 7117(b)(2) 
“the A uthority shall determ ine” (Aberdeen Br. 24). 
Aberdeen asserts the S ta tu te  intends th a t with respect 
to the resolution of some negotiability issues the union 
is being given the option of pursuing a negotiability ap­
peal under Section 7117(c) or an unfair labor practice 
proceeding under Section 7118, but th a t with respect to 
the resolution of compelling need negotiability issues 
the union can only seek resolution under the Section 
7117(b) negotiability appeal procedure (Aberdeen Br. 
23-25).1

The problem with A berdeen’s reading is th a t it 
divorces the phrasing of the S ta tu te  from the S ta tu te ’s 
structure , context, and purpose. F irst of all, the phrases

1 Of course, regardless of whether the compelling need issue 
arises as an agency allegation of nonnegotiability a t the bargaining 
table or arises as an agency defense for its failure to bargain in a 
unilateral change unfair labor practice case, it is the union which 
seeks the Authority’s resolution of the issue, .lust the opposite is 
the case when an arbitrator orders agency action which the agency 
asserts is inconsistent with an internal agency regulation for which 
there is a compelling need. The Authority resolves these agency 
assertions of compelling need under the arbitral review procedures 
in Section 7122 (see cases cited at FLRA Br. 32 n.28). Under Alter 
deen’s reading of the Section 7117(b) procedure as the exclusive 
means for resolving compelling need issues, a procedure which only 
the union can invoke, an agency would not be permitted to raise a 
compelling need defense to implementation of an arbitral award.

166



4

Aberdeen chooses to con trast are not even parallel. Sec­
tion 7117(b) speaks of w hat the Authority shall do once 
the union files such an appeal; Section 7117(c)(1) speaks 
of w hat the union may d o - th a t  is, it may appeal.2 
Then Aberdeen m isconstrues the meaning of Section 
7117(c)(l )'s s tatem ent, "the exclusive representative 
may appeal.” T hat phrase simply indicates th a t the 
union’s options, upon receiving an agency's allegation of 
nonnegotiability, include not filing a negotiability ap­
peal. For example, the union may re tu rn  to the bargain­
ing table and propose alternatives or bargain over agen­
cy counterproposals. See generally AFG E, Local 2303 v. 
F L R A , 815 F.2d 718, 722 (D.C. Cir. 1987). The per­
missive language in Section 7117(c) also prevents an 
agency’s informal allegation of nonnegotiability from in­
eluctably triggering the 15-day time limit th a t Section 
7117(c)(2) imposes on the filing of negotiability appeals. 
Ibid.

Aberdeen’s misreading of the language of the S ta tu te  
not only divorces the term s used in Sections 7117(a)(2) 
and 7117(b)(1) from their object purpose of creating a 
negotiability appeal procedure, it also construes tha t 
language without an appr eciation of the limited circum ­
stances in which internal agency regulations bar- 
bargaining and without an appreciation of the law that 
obligates an employer to bargain over negotiable m at­
ters when it a lters conditions of employment. In so 
doing, Aberdeen ignores the admonition of this Court 
tha t "the tex t is only the s tarting  point.” Kelly v.

2 Section 7117(b)’s statem ent that “the Authority shall 
determ ine'’ is a reference to the Authority’s obligation to resolve 
the issue when the union initiates a Section 7117(b) compelling 
need negotiability appeal. Section 7117(c)(6) (5 U.S.C. 7117(c)(6)) 
imposes a similar obligation upon the Authority when the Authori­
ty resolves a union’s Section 7117(c) negotiability appeal.

167



Robinson, No. 85-1083 (Nov. 12, 198(5), slip op. (5. And as 
this C ourt has noted on num erous occasions, “ ‘ “fi|n ex­
pounding a sta tu te , we m ust not be guided by a single 
sentence or member of" a sentence, but look to the provi­
sions of the whole law, and to its object and policy.” ’ ” 
Offshore Logistics, Inc. v. Tallentire, No. 85-202 (June 
23, 1986) slip op. 13 (quoting M astro Plastics Corp. v. 
N LRB , 350 IJ.S. 270, 285 (1956) (quoting United States 
v. H eirs o f Boisdore, 8 How. 113, 122 (1849))).

0 . Aberdeen’s a ttem p t a t finding “im portant pur­
poses” (Aberdeen Br. 17, 26-30) to support a reading of 
the Section 7117(b) negotiability appeal procedure as 
“exclusive,” but not the Section 7 1 17(c) negotiability ap­
peal procedure, has the effect of inverting the strength  
of the S ta tu te ’s various negotiability bars and ignores 
both Executive Order practice as well as the S ta tu te ’s 
legislative history.

F irst, Aberdeen erroneously contends th a t a com­
pelling need negotiability determ ination involves a 
challenge to the im portance and legitimacy of internal 
agency regulations tha t otherwise have the force of law 
(Aberdeen Br. 17, 26). A compelling need inquiry" is 
nothing more than an inquiry into w hether the agency’s 
decision to exercise, in an agency regulation, its discre­
tion over a m a t te r - a  m atter which is not removed from 
collective bargaining by, for example, the scope of the 
nonnegotiable m anagem ent rights in Section 710(5 or by 
federal law or by government-wide regu lation-should  
have the effect of removing an otherwise negotiable 
proposal from the scope of the duty to bargain. Con­
trary  to Aberdeen’s contention (Aberdeen Br. 17, 26), 
the A uthority’s determ ination th a t an internal agency 
regulation does not bar collective bargaining is not a 
determ ination tha t the regulation is illegitim ate or in­
valid (see 1975 Council Report discussion a t ELBA Br. 
App. 5a). In fact, an agency regulation does establish

1 6 8



6

the rights and obligations within the agency in all cir­
cum stances except where the agency, in fulfilling its 
statu to ry  collective bargaining obligation, agrees o ther­
wise.3

In turn , the limited nature of this negotiability barrier 
is beyond dispute. This conclusion follows from an 
understanding of Executive O rder practice (see 1975 
Council Report a t FLRA Or. App. Ia-10a);4 an apprecia­
tion of the legislative history of the S ta tu te ;5 6 and an

3 Aberdeen's contention that Congress gave the employing agen­
cy the right to waive an assertion of compelling need (5 U.S.C. 
7117(h)(2)(A)) because Congress thought the compelling need in­
quiry was “especially intrusive” (Aberdeen Br. 27) is a characteriza­
tion of Aberdeen’s invention, with no support in fact, and with no 
appreciation of why that waiver opportunity was incorporated 
originally into the Executive Order. See FLRA Ur. 21 n.9 and 1975 
Council Report discussion at FLRA Hr. App. 2a-3a, 8a.

1 Indeed, it is Aberdeen which notes that the Federal Labor Rela­
tions Council (the Authority's pre-Statute predecessor and pro­
mulgator of similar compelling need criteria) explained that its 
compelling need criteria established “a stringent standard" and 
that they were “designed and adopted to the end that internal 
‘agency regulations not critical to effective agency management or 
the public interest’ ’’ not preclude collective bargaining (Aberdeen 
Hr. 28 n i l  (emphasis in original)).

6 See H R Rep. No. 95-1403, 95th Cong., 2d Sess. 51 (1978)("The 
committee intends that (the Authority’s compelling need] criteria 
be similar to those promulgated by the Federal Labor Relations 
Council * * *."), reprinted in Subcomm. on Postal Personnel and 
Modernization of the House Comm, on Post Office and Civil Serv­
ice, 9 (ill) Cong., 1st Sess., Lei/ml alive History of the Federal Service 
Labor-Mu nat/emeut Relations Statute, Title VII of the Civil Service 
Reform Act of 1978, a t 097 (Comm. Print No. 96-7) (Let,is. Hist.). 
And, as stated by Representative Ford (acknowledged by Aber­
deen to be “a major participant in the fashioning of the House 
language on Title VII” (Aberdeen Hr. 37 n. 13) (citation omitted)): 
"The compromise position in section 7117 was accepted with the 
understanding that * * * (he compelling need test will be permitted 
to be raised in only a limited number of cases.” 124 Cong. Rec. 
29199 (1978) (emphasis added), reprinted in Legis. Hist, at 950.

1 6 9



7

understanding of the A uthority’s compelling need 
criteria  and the application of those criteria  (see FLRA 
Br. 24-27). As a result, internal agency regulations are 
one of the S ta tu te ’s least restrictive bars to bargaining.

Next Aberdeen asserts (Aberdeen Br. 30) tha t an 
agency should not be put “a t peril” of an unfair labor 
practice when it changes conditions of employment, 
refuses to bargain, and then defends its refusal to 
bargain by mistakenly asserting  the compelling need 
negotiability defense. Yet it is well established tha t the 
S ta tu te  imposes upon an agency a duty to bargain over 
m atters within the duty to bargain when it seeks to 
change conditions of employment, and th a t a breach of 
this duty to bargain can constitute an unfair labor prac­
tice. See F L R A  v. Social S ecurity  A dm inistra tion , 753 
F.2d 156 (D.C. Cir. 1985); F LR A  v. United Slates 
Departm ent o f the A ir  Force, T inker A ir  Force Base, 
735 F.2d 1513 (D.C. Cir. 1984). Aberdeen’s reading of 
the S ta tu te  would rew ard an employing agency, in­
volved in defending its refusal to bargain in a unilateral 
change unfair labor practice case, for its choice of a 
litigation defense ra ther than the m erits of that 
defense. And ironically, the specific litigation defense so 
rew arded is one of the S ta tu te ’s least restrictive bars to 
bargaining. See FLRA Br. 19-27.

C. A berdeen’s a ttem pt to find support for its reading 
of the S ta tu te  in either the p re-S tatu te Executive Order 
practice or in the S ta tu te ’s legislative history is un­
availing. Most significantly, however, Aberdeen points 
to no indication th a t Congress, in crafting  and cont inu­
ing a negotiability appeal procedure for compelling need 
issues, desired to undo the principle that, regardless of 
the nature  of an agency’s negotiability defense, an agen­
cy breaches the “continuing obligation” to bargain 
w henever it unilaterally changes conditions of employ­
m ent and, in so doing, refuses to bargain over a m atter

170



8

tha t subsequently can be shown to have been within the 
duty to bargain.6

In discussing the 1975 changes to Executive O rder 
11491, as amended, Aberdeen contends (Aberdeen Br. 
30-35) th a t the decision to lessen the negotiability bar­
rier of internal agency regulations and the decision to 
allow the resolution of negotiability issues in unilateral 
change unfair labor practice cases “were entirely 
separate  changes intended to prom ote very different 
ends." (Aberdeen Br. 34). Aberdeen misses the point. 
Both these changes w ere p art of an overall revision of 
the Executive O rder and were simultaneously incor­
porated into Executive O rder 11491 (by Executive

u The Authority, in discussing the Udall substitute which, in this 
area ultimately became the term s of the enacted Statute, noted 
(FLRA Br. 24) that the substitute “did contain two specific changes 
from the Executive Order approach, in the direction of broader 
bargaining rights.” Aberdeen’s quarrel with this observation (Aber­
deen Br, 38 n.14) stems from Aberdeen’s failure to note that the 
Authority was comparing the Udall substitute with the Executive 
Order, not with other House bills.

While the Udall substitute offered certain broader bargaining 
rights than the Executive Order, the Senate bill generally paral­
leled the more restrictive Executive Order. See generally Depart­
ment of Defense v. FLRA, 659 F.2d 1140, 1154-1157 (D.C. Cir. 
1981), cert, denied, 455 U.S. 945 (1982); A FOE  v. FLRA, 712 F.2d 
640, 647-648 (D.C. Cir. 1083). Yet despite the Senate bill’s more 
restrictive approach, it was Site Committee Report of the Senate 
bill which stated: “Where agency management proposes to change 
established personnel policies, the exclusive representative must be 
given notice of the proposed changes and an opportunity to 
negotiate over such proposals to the extent they are negotiable.” S. 
Rep. No. 95-969, 95th Cong., 2d Sess. 104 (1978), reprinted in 
Legis. Hist, a t 764. See Department of the A ir  Force, Scott Air  
Force Base, Illinois, 5 F.L.R.A. 9, 10-11 (1981). In Aberdeen’s 
failed attem pt to relegate this well established principle of labor 
law to only the private sector (Aberdeen Br. 39-41), Aberdeen does 
not acknowledge this legislative history.

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9

O rder 11838).7 As revised, section 11(d) of the Ex- 
ecutive O rder stated  th a t as p a rt of a  unilateral change 
unfair labor practice case, “those determ inations of 
negotiability [could be made] as may be necessary to 
resolve the m erits of the alleged unfair labor practice”;8 
section 11(c) item ized those d e te rm in a tio n s  of 
negotiability;9 and section 1 1(c)(4)(h) referenced the 
compelling need standard  for internal agency regula­
tions as one of those determ inations of negotiability.10 
Even the court below disagrees with Aberdeen’s 
reading of the Executive Order, s ta ting  the Authority is 
“correct th a t under the Order, as it existed a t the time 
the [S tatute] was passed, the procedure they recom­
mend today was followed.” Fort Belvoir, Pet. App. 60a.

Aberdeen fares no b e tte r when it tu rns to examine 
congressional deliberations over the S tatu te . Citing 
solely the fact tha t the House Com m ittee bill had only 
one negotiability appeal procedure, used for resolving 
compelling need issues, Aberdeen argues (Aberdeen Br. 
35-36) tha t the House Committee bill intended to pro­
hibit the resolution of compelling need negotiability 
defenses in unilateral change unfair labor practice 
cases. Not only was tins legislative proposal not 
enacted, but Aberdeen e rrs  in reading anything into the 
House Committee proposal th a t would even relate to 
the issue in this case. The fact that the House Com­

7 Executive Order 11838 (1975), 3 C.B.R. 957, 959 (1971 1975 
comp.), reprinted in Legis. Hist, a t 133(1, 1339.

8 Executive Order 11491, as amended, § 11(d), reprinted in 
begin. Hist, a t 1346.

9 Id. a t § 11(c); see also id. a t § 4(c)(2), reprinted in Legis. Hist, at 
1343.

10 Executive Order 11491, as amended, <) 1 l(c)(4)(ii), reprinted in 
Legis. Hist, a t 1346.

1 7 2



10

m ittee bill contained a negotiability appeal procedure 
for resolving compelling need issues does not, without 
more, reveal an in ten t to bar resolution of those issues 
in a unilateral change unfair labor practice case any 
more than did the existence of a similar negotiability ap­
peal procedure bar such resolution under the Executive 
Order. In this vein, the S ta tu te  continues the Executive 
Order practice of providing a negotiability appeal pro­
cedure for resolving all negotiability issues; even Aber­
deen does not assert tha t the existence of such a pro­
cedure bars resolution in a unilateral change unfair 
labor practice case of negotiability issues otherwise 
resolved under the Section 7117(c) negotiability appeal 
procedure.

D. Finally, Aberdeen erroneously argues (Aberdeen 
Br. 23, 28-29, 37) tha t the A uthority’s allowing the 
resolution of a compelling need negotiability issue in a 
unilateral change unfair labor practice proceeding im­
properly disregards the various procedural features of a 
Section 7117(b) negotiability appeal proceeding. 
However, as noted in the A uthority’s opening brief 
(FLRA Br. 34-35), among o ther things the various 
features of a Section 7117(b) proceeding are, with one 
exception,1® also features of a Section 7117(c) pro­
ceeding; and neither Aberdeen nor the decision of the 11

11 a Section 7 i 17(h) negotiability appeal, in the event the 
Authority exercises its discretion and holds a hearing, the agency is 
a necessary party. Aberdeen ignores (see Aberdeen Br. 27, 29, 42, 
43) the fact that the S ta tu te’s requirement of agency participation 
conies into play only when the Authority decides to hold a hearing. 
Moreover, while Aberdeen, in its effort to contrast the two types of 
negotiability proceedings, suggests to the Court that the difference 
between agency participation in a Section 7117(b) and a Section 
7117(c) hearing is “crucial" (Aberdeen Br. 26 n.8), this difference 
has yet to surface in the 9-year history of the operation of the 
S tatute. See Defense Logistics Agency v. FLRA, 754 F.2d 1003 
1011 n.13 (l).C. Cir. 1985).

173



court below suggests th a t the A uthority contravenes 
the S ta tu te  when it resolves in a unilateral change un­
fair labor practice case the types of agency negotiability 
defenses th a t would otherwise be processed under the 
Section 7117(c) procedure.

Finally, we note once again tha t the Authority has 
“good reasons” (Defense Logistics Agency v. FLU A, 
supra, 754 F.2d a t 1014) for its consistent construction 
of its enabling act. It is in the in te rest of the efficient 
and effective adm inistration of the S ta tu te  th a t all 
issues-inc lud ing  compelling need issues-w hich  arise 
in a unilateral change unfair labor practice dispute be 
resolved in tha t proceeding. Otherwise the very “ineffi­
ciencies,” which Aberdeen acknowledges prom pted the 
1975 adoption of such unified processing under the Fx- 
ecutive O rder (Aberdeen Hr. 35), would resurface. See 
Defense Logistics Agency v. FLU A, supra, 754 F 2d a t 
1014.

Respectfully subm itted.

! I

R u th  E . P k t k u s *
Solicitor

WlU.IAM E. I'KKSINA 
Deputy Solicitor 

A ktiiiik  A. Ho r o w i t z
A ssociale Solicitor

Ro u k r t  J. E n u u s iia k t
A Homey

*Counsel of Record

J a n u a r y  i <J88

A U S . GOVERNMENT PRINTING OFFICE: 1900 199 759/62020

174



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