UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NATL ASSN GOVT EMPL

v.

FLRA


98-1313a

D.C. Cir. 1999


*	*	*


Karen LeCraft Henderson, Circuit Judge: The petition- ers, labor unions
representing federal employees, seek review  of the decisions of the
Federal Labor Relations Authority  (FLRA or Authority) that three
federal agencies did not  commit unfair labor practices when they
refused to bargain  over matters covered by section 7106(b)(1) of the
Federal  Service Labor-Management Relations Statute (FSLMRS), 5 
U.S.C. s 7106(b)(1). They contend that the FLRA incorrect- ly
determined that section 2(d) of Executive Order 12871 (EO  12871), 58
Fed. Reg. 52,201, 52,202-03 (1993), which provides  that agencies
"shall ... negotiate over the subjects set forth  in 5 U.S.C. s
7106(b)(1)," did not constitute an election to  bargain over matters
covered by 5 U.S.C. s 7106(b)(1). We  agree with the FLRA and hold
that section 2(d) of EO 12871  did not effect an election under 5
U.S.C. s 7106(b)(1). Ac- cordingly, we deny the petitions for




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n 1 On April 15, 1999 we issued an order consolidating POPA v.  FLRA,
No. 98-1377 with NAGE v. FLRA, Nos. 98-1313, 98-1317  for oral
argument and, now, disposition.


I.


The Patent Office Professional Association (POPA) and the  National
Association of Government Employees (NAGE) are  labor unions
representing federal employees. The United  States Department of
Commerce, Patent and Trademark  Office (PTO), the United States
Department of Veterans  Affairs (Veteran Affairs) and the United
States Department  of the Air Force (Air Force) (collectively
agencies) are federal  agencies subject to the FSLMRS's collective
bargaining re- quirement and thus must bargain with their employees
over  all labor issues not statutorily excluded therefrom. See 5 
U.S.C. s 7102 ("Except as otherwise provided" federal em- ployees have
right to unionize and "to engage in collective  bargaining"). Relevant
here, 5 U.S.C. s 7106(a)(2) excludes  certain "management rights" from
the obligation to negoti- ate.2 The right not to bargain over
management rights is,  however, limited by 5 U.S.C. s 7106(b).3


__________

n 2 Section 7106(a) (2) provides: (a) Subject to subsection (b) of this
section, nothing in this  chapter shall affect the authority of any
management official of  any agency-- ... (2) in accordance with
applicable laws--


(A) to hire, assign, direct, layoff, and retain employees  in the
agency, or to suspend, remove, reduce in grade or  pay, or take other
disciplinary action against such employ- ees;  (B) to assign work, to
make determinations with respect  to contracting out, and to determine
the personnel by  which agency operations shall be conducted; (C) with
respect to filling positions, to make selections  for appointments
from--


(i) among properly ranked and certified candidates  for promotion; or


(ii) any other appropriate source; and


(D) to take whatever actions may be necessary to carry  out the agency
mission during emergencies. 5 U.S.C. s 7106(a)(2). 3 The relevant part
of section 7106(b) provides: requires an agency to negotiate about the
procedures it uses  in exercising its management rights, 5 U.S.C. s
7106(b)(2), as  well as the "appropriate arrangements for employees
ad- versely affected" by the exercise of management rights, id.  s
7106(b)(3). Section 7106(b)(1) also authorizes the agency,  "at [its]
election," to negotiate on certain enumerated matters.  5 U.S.C. s
7106(b)(1); see also Association of Civilian Tech- nicians, Montana
Air Chapter v. FLRA, 22 F.3d 1150, 1155  (D.C. Cir. 1994) (explaining
relationship between s 7106(a)  and s 7106(b)(1)).


On October 1, 1993 the President issued EO 12871, entitled 
"Labor-Management Partnerships." The introductory provi- sions declare
its purpose is "to establish a new form of labor- management relations
throughout the executive branch to  promote the principles and
recommendations adopted as a  result of the National Performance
Review." 58 fed. Reg. at  52,201. Section 2 of EO 12871 provides in
part that "[t]he  head of each agency ... shall ... (d) negotiate over
the  subjects set forth in 5 U.S.C. s 7106(b)(1), and instruct 
subordinate officials to do the same." 58 Fed. Reg. at 52,202- 03.4




__________

n (b) Nothing in this section shall preclude any agency and any  labor
organization from negotiating--


(1) at the election of the agency, on the numbers, types, and  grades
of employees or positions assigned to any organiza- tional
subdivision, work project, or tour of duty, or on the  technology,
methods, and means of performing work.  5 U.S.C. s 7106(b)(1).


4 Section 2 of EO 12871 provides: Implementation of Labor-Management
Partnerships  Throughout the Executive Branch. The head of each agency
 subject to the provisions of chapter 71 of title 5, United States 
Code shall:  (a) create labor-management partnerships by forming
labor- management committees or councils at appropriate levels, or 
adapting existing councils or committees if such groups exist, to 
help reform Government;


(b) involve employees and their union representatives as full  partners
with management representatives to identify prob-  [t]his order is
intended only to improve the internal  management of the executive
branch and is not intended  to, and does not, create any right to
administrative or  judicial review, or any other right, substantive or
proce- dural, enforceable by a party against the United States,  its
agencies or instrumentalities, its officers or employ- ees, or any
other person.


Id. at 52,203.


On December 16, 1993, the Office of Personnel Manage- ment (OPM) issued
"Guidance for Implementing Executive  Order 12871" (Guidance). The
Guidance declares that, ac- cording to EO 12871, "bargaining over the
subjects set forth  in 5 U.S.C. s 7106(b)(1) is now mandatory, and a
failure by  agency managers to engage in such bargaining would be 
inconsistent with the President's directive." POPA Br. at  A-5. OPM
also noted that


[i]n the event the parties are unable to reach an agree- ment, they are
encouraged to use the Federal Mediation  and Conciliation Service as
well as any other mutually  agreed-upon dispute resolution
processes.... If that  does not result in an agreement, either party
may, in  accordance with 5 U.S.C. s 7119, take the impasse to the 
Federal Service Impasses Panel or to an arbitrator  


__________

n lems and craft solutions to better serve the agency's customers  and
mission;


(c) provide systematic training of appropriate agency em- ployees
(including line managers, first line supervisors, and  union
representatives who are Federal employees) in consensu- al methods of
dispute resolution, such as alternative dispute  resolution techniques
and interest-based bargaining ap- proaches;


(d) negotiate over the subjects set forth in 5 U.S.C.  7106(b)(1), and
instruct subordinate officials to do the same;  and


(e) evaluate progress and improvements in organizational  performance
resulting from the labor-management partner- ships.  58 Fed. Reg. at
52,202-03. agreed upon by the parties under the procedures ap- proved
by the Panel.


Id.


After the issuance of the Guidance, the three respondent  agencies
refused to bargain over various management rights  issues.5 NAGE and
POPA then filed unfair labor charges  against the agencies. After
conducting hearings, the adminis- trative law judge (ALJ) in each case
ruled that, with one  exception, the agencies had not committed unfair
labor prac- tices when they refused to bargain over section 7106
(b)(1)  issues because EO 12871 did not constitute a section 
7106(b)(1) election.6 See United States Dep't of Veterans  Affairs
Med. Ctr., Lexington, Ky., Case No. CH-CA-50399  (Aug. 26, 1997) (NAGE
Joint Appendix (JA) 19-25); United  States Dep't of the Air Force,
Hanson AFB, Mass., Case No.  BN-CA-41011 (July 31, 1996) (NAGE JA
33-37); United  States Dep't of Commerce, Patent & Trademark Office,
Case  No. WA-CA-40743 (July 9, 1996) (POPA JA 32-46). NAGE  and POPA
then filed exceptions to the respective ALJ's  rulings. On November
17, 1997 the FLRA decided that PTO  had refused to negotiate on a
section 7106(b)(1) matter. See  United States Dep't of Commerce,
Patent & Trademark  Office (Commerce I), 53 F.L.R.A. 858 (1997)
(discussed supra  note 6). The Authority concluded, however, that the
record  was inadequate for it to determine if EO 12871 effected an 
election. Accordingly, it deferred consideration of the issue 




__________

n 5 PTO refused to bargain over whether to hire computer science 
patent examiners for two-year terms or as permanent appointees,  the
Air Force filled several vacant positions without negotiation and  the
Veteran Affairs implemented, without negotiation, its decision  to
allow lab technicians to perform "certain Dental Assistant duties  on
a regular rotational basis." NAGE JA 21.


6 In Department of Commerce, the ALJ found that PTO did  commit an
unfair labor practice by failing to negotiate regarding the 
implementation of its decision to hire new patent examiners. See  POPA
Joint Appendix (JA) 38. The Authority affirmed this hold- ing, United
States Dep't of Commerce, Patent & Trademark Office,  53 F.L.R.A. 858,
859 (1997), and PTO has not appealed.


and invited additional submissions from the parties and ami- cus
curiae.7 See Commerce I, 53 F.L.R.A. at 879; see also 62  Fed. Reg.
62,315 (1997). After considering the submissions,  the FLRA ruled that
EO 12871 did not effect an election to  negotiate on section
7106(b)(1) issues. See United States  Dep't of Commerce, Patent &
Trademark Office (Commerce  II), 54 F.L.R.A No. 43 (1998).
Accordingly, it found that  PTO's refusal to negotiate did not
constitute an unfair labor  practice. Subsequently, the FLRA rejected
NAGE's claims  of unfair labor practices against the Air Force and
Veteran  Affairs based on its decision in Commerce II. See United 
States Dep't of Veterans Affairs Med. Ctr., Lexington, Ky., 54 
F.L.R.A. No. 44 (June 19, 1998); United States Dep't of the  Air
Force, Hanson AFB, Mass., 54 F.L.R.A. No. 46 (June 19,  1998). POPA
and NAGE then petitioned this court for  review. The respondent


II.


While "the Authority 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," Bureau of
Alcohol, Tobacco & Firearms v. FLRA,  464 U.S. 89, 97 (1983), we do
not defer when the Authority  interprets statutes (and regulations)
outside its domain. See  National Treasury Employees Union v. FLRA
(NTEU), 848  F.2d 1273, 1275 (D.C. Cir. 1988) ("[W]e need not defer to
[the  FLRA's] interpretation of ... regulations promulgated by  other
agencies."); INS v. FLRA, 709 F.2d 724, 729 n.21 (D.C.  Cir. 1983)
("[The FLRA's] reconciliation involves interpreting  a statutory
provision not within its enabling statute--a provi-




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n 7 Amici briefs were submitted by: (1) OPM; (2) Department of  the
Interior; (3) American Federation of Government Employees,  AFL-CIO
and the Public Employee Department of the Labor- Congress of
Industrial Organizations (AFGE); (4) Association of  Civilian
Technicians; (5) National Air Traffic Controllers Associa- tion; (6)
National Treasury Employees Union; (7) Senior Execu- tives
Association; and (8) Professional Airways Systems Specialists. 
Commerce II, 54 F.L.R.A. no. 43 at 3 n. 4. Only AFGE appears as 


sion not within its expertise. Hence we need not defer to  it."); see
also American Fed'n of Gov't Employees, Local  2782 v. FLRA, 803 F.2d
737, 740 n.1 (D.C. Cir. 1986) (declin- ing to adopt FLRA's "novel
proposition" that it was entitled  to "middle level deference" when
interpreting OPM's Federal  Practice Manual). Therefore, because the
FLRA's decision is  based on an interpretation of EO 12871, and not
the  FSLMRS, we review its determination de novo. See NTEU,  848 F.2d
at 1275. "[W]e shall, of course, follow its reasoning  to the extent
that we deem it sound." Department of Trea- sury v. FLRA, 837 F.2d
1163, 1167 (D.C. Cir. 1988).


As the parties agree, section 2(d) of the EO is mandatory-- "[t]he head
of each agency ... shall ... negotiate." Con- trary to the
petitioners' assertion, however, the mandatory  language does not
constitute a section 7106(b)(1) election.  First, the plain language
of the EO does not recite that the  President elects to negotiate;
instead, it declares that he has  directed his subordinates to take
certain action. As the  FLRA noted, construing the EO to constitute a
direction, but  not an election, gives meaning to the "precise words"
of  section 2(d) by recognizing that "[d]irecting another to under-
take an act is not necessarily the same as undertaking the act 
oneself." Commerce II, 54 F.L.R.A. No. 43, at 19. This  distinction is
not merely an "immaterial semantic" one, as  POPA suggests. POPA Br.
at 26. For example, if the  President orders the Secretary of State to
terminate an  employee, the order does not effect the
termination--only the  Secretary of State can terminate an employee
whom the  Secretary was statutorily authorized to appoint. See NTEU 
v. Regan, 663 F.2d 239, 247-48 (D.C. Cir. 1981).


Moreover, contrary to NAGE's claim, our interpretation  does not lead
to the "absurd result" that an "agency that  obeys an Executive Order
... will be subject to the coverage  of the Statute, but the
insubordinate executive agency that  disregards the President's order
may evade statutory cover- age." NAGE's Br. at 34. An insubordinate
agency is subject  to Executive Branch enforcement of the EO through
persua- sion and, ultimately, termination of the resisting official.
Cf.  NTEU, 663 F.2d at 247-48 ("The President can, of course, 


order the Secretary of State to revoke the appointment, and  can fire
the Secretary of Defense if he refuses to revoke it.").  This result
is not, as the petitioners assert, inconsistent with  the concept of a
"unitary executive." Rather, by interpreting  EO 12871 as we do, that
is, as an order but no more, we  reaffirm the President's authority
"[t]o insure [his] control  and supervision over the Executive
Branch," Sierra Club v.  Costle, 657 F.2d 298, 405 (D.C. Cir. 1981),
but without finding  him to have exercised that control through any
means beyond  an order to his subordinates.


More important, careful examination of section 2(d), as well  as of the
remainder of EO 12871, manifests that the President  did not intend to
"translate[ ] the verb 'shall' into ... an  election, making the
direction to agencies enforceable not  only by the President as chief
executive, but also by a  prosecutor through adjudicatory proceedings
before the Au- thority, appealable to and ultimately enforceable by
the Fed- eral courts." Commerce II, 54 F.L.R.A. No. 43, at 18. 
Section 3, as earlier noted, provides that the EO "is intended  only
to improve the internal management" and "does not[ ]  create any right
to administrative or judicial review, or any  other right, substantive
or procedural, enforceable by a par- ty." 58 Fed. Reg. at 52,203. Cf.
John Hancock Mut. Life  Ins. Co. v. Harris Truck & Sav. Bank, 510 U.S.
86, 94-95  (1993) (courts interpret statutes by "looking to the
provisions  of the whole law").


Because the language of EO 12871 in its entirety is clear,  and because
the petitioners provide no reason to depart  therefrom,8 we conclude
that EO 12871 does not constitute a 




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n 8 The petitioners argue that because OPM is the " 'controlling 
agency regarding civil service matters,' " POPA Br. at 29, its 
Guidance provides strong evidence that the EO effected an election. 
But the Guidance, assuming it reflects OPM's belief that the EO 
effected an election, is insufficient to overcome the plain language
of  the EO. Cf. Rubin v. United States, 449 U.S. 424, 430, (1981) 
("When we find the terms of a statute unambiguous, judicial inquiry 
is complete, except in rare and exceptional circumstances." (quota-


section 7106(b)(1) election. Accordingly, the petitions for  review
are


Denied.