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Brief Collection, LDF Court Filings. Federal Labor Relations Authority v. Arberdeen Proving Ground Petitions and Briefs, 1988. e9f11f8a-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e95ec67e-eb35-4513-bb0c-737e704338dd/federal-labor-relations-authority-v-arberdeen-proving-ground-petitions-and-briefs. Accessed July 07, 2025.
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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). 86 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) 116 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. 125 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- 126 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 127 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 128 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 129 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; 131 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, 132 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.” 135 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. 141 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 151 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). 152 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. 171 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 Law Reprints 5442 30th St., NW Washington, DC 20015