National Treasury Employees Union v. Federal Labor Relations Authority , 745 F.3d 1219 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 18, 2014 Decided March 21, 2014
No. 12-1234
NATIONAL TREASURY EMPLOYEES UNION,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of a Final Decision
of the Federal Labor Relations Authority
Julie M. Wilson argued the cause for petitioner. With her
on the briefs were Gregory O’Duden and Jacob Heyman-
Kantor. Paras N. Shah entered an appearance.
Zachary R. Henige, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. On the brief were
Rosa M. Koppel, Solicitor, and David M. Shewchuk, Deputy
Solicitor.
Before: HENDERSON, ROGERS and KAVANAUGH, Circuit
Judges.
Opinion for the court by Circuit Judge ROGERS.
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ROGERS, Circuit Judge: The National Treasury Employees
Union petitions for review of the decision of the Federal Labor
Relations Authority that the Internal Revenue Service (“the
IRS”) did not commit an unfair labor practice under 5 U.S.C.
§ 7116 when it failed to provide the Union notice or an
opportunity to bargain over an increase in the workloads of IRS
Case Advocates. Because Authority precedent established that
this bargaining obligation arises only when an agency initiates
a change in its policies, practices, or procedures, and the
Authority reasonably relied on that precedent, we deny the
petition for review.
I.
The Federal Service Labor-Management Relations Statute
(“the Statute”) requires agencies to bargain in good faith with
their employees’ recognized representative regarding
“conditions of employment,” 5 U.S.C. §§ 7102(2), 7103(a)(12),
7114(a)(4), (b), which include “personnel policies, practices,
and matters, whether established by rule, regulation, or
otherwise, affecting working conditions,” id. § 7103(a)(14).
Although an agency is not required to bargain over its
management rights, including the right to control its internal
organization, the number of employees, and work assignments,
it must negotiate about the impact and implementation of its
exercise of those rights. Id. § 7106; see NTEU v. FLRA, 414
F.3d 50, 52–53 (D.C. Cir. 2005). Under 5 U.S.C. § 7116(a)(1)
and (5), it is an unfair labor practice for an agency “to interfere
with, restrain, or coerce any employee in the exercise by the
employee of any right under this chapter” or “to refuse to
consult or negotiate in good faith with a labor organization as
required by this chapter.” As interpreted by the Authority, the
requirement of good faith bargaining means that
prior to implementing a change in conditions of
employment, an agency is required to provide the
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exclusive representative with notice of the change and
an opportunity to bargain over those aspects of the
change that are within the duty to bargain, if the
change will have more than a de minimis effect on
conditions of employment.
Dep’t of the Air Force, Air Force Materiel Command, Space &
Missile Sys. Ctr., Detachment 12, Kirtland Air Force Base,
N.M., 64 F.L.R.A. 166, 173, 175 (2009); see id. at 176. Failure
to do so constitutes a violation of 5 U.S.C. § 7116(a)(1) and (5).
Id. at 173, 175; see also Internal Revenue Serv., Washington,
D.C., 4 F.L.R.A. 488, 488, 498–99 (1980).
On June 25, 2008, the Union, as exclusive bargaining
representative, filed a national grievance on the ground that the
IRS had “measurably increased the caseloads of Case
Advocates within the Taxpayer Advoca[te] Service (TAS)
without giving notice to [the Union] and providing an
opportunity to bargain,” and violated the parties’ collective
bargaining agreement (the “National Agreement”) and 5 U.S.C.
§ 7116(a)(1) and (5). See Arb. Dec. at 3–4. An arbitrator found
that the IRS violated Article 47 of the National Agreement and
5 U.S.C. § 7116(a)(1) and (5) by changing employees’
conditions of employment without fulfilling its notice-and-
bargaining obligations. Concluding that “[t]he IRS cannot
control how many taxpayers use this service established by
Congress and cannot choose to ignore taxpayers’ inquiries and
concerns,” the Arbitrator found that “[w]orkload is not
determined solely by the number of cases coming into TAS,”
and that the IRS “has control over other factors that affect
workload,” including case processing procedures, deadlines for
completing individual actions, and the number of staff available.
Arb. Dec. at 36. Because the “[s]ubstantial increases in the
number of cases . . . are not sufficiently mitigated by other
factors,” the Arbitrator concluded that the IRS was responsible
for the change in conditions of employment, triggering its
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notice-and-bargaining obligations. Id. at 39–40. The Arbitrator
awarded various remedies, including ordering the IRS to
bargain and to post a notice that it had committed an unfair
labor practice and violated the National Agreement, but denied
the Union’s requests for a status quo ante remedy and attorney’s
fees. Both the Union and the IRS filed exceptions.
The Authority reversed in part, affirmed in part, and
remanded in part. First, it set aside the unfair labor practice
violation under § 7116(a)(1) and (5), explaining that a finding
that an agency has failed to provide a union with notice and an
opportunity to bargain over changes to conditions of
employment requires a “threshold determination that the agency
made a change in a policy, practice, or procedure affecting unit
employees’ conditions of employment.” NTEU, 66 F.L.R.A.
577, 579 (2012). The Arbitrator found only that there had been
an increase in the number of incoming cases, not that the IRS
made any “unilateral change” that violated its notice-and-
bargaining obligations under the Statute. Id. at 580. Second, it
left standing, in the absence of an exception, the Arbitrator’s
finding that the IRS had violated the National Agreement and
therefore set aside only the posting requirement regarding the
unfair labor practice. See id. at 581. Third, it rejected the
Union’s exception that the Arbitrator’s denial of a status quo
ante remedy was contrary to law but agreed with the Union on
attorney’s fees and remanded that portion of the award to the
Arbitrator for additional factual findings, in the absence of
agreement by the parties. See id. at 582.
The Union petitions for review of the Authority’s
determination that the IRS did not commit an unfair labor
practice in violation of 5 U.S.C. § 7116(a)(1) and (5). We first
address our jurisdiction.
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II.
The court has jurisdiction to review a final order of the
Authority when an unfair labor practice under 5 U.S.C. § 71161is “either an explicit ground for, or [] necessarily implicated by,
the Authority’s decision.” Overseas Educ. Ass’n v. FLRA, 824
F.2d 61, 67–68 (D.C. Cir. 1987) (adopting analysis in United
States Marshals Service v. FLRA, 708 F.2d 1417, 1420 (9th Cir.
1983)); see 5 U.S.C. § 7123(a)(1). Here, the Authority’s
reversal of the Arbitrator’s unfair labor practice finding clearly
involves an unfair labor practice. Further, the Statute, 5 U.S.C.
§ 7123(c), contemplates review of a part of an Authority order
by referencing 5 U.S.C. § 706, which refers to review of an
“agency action” defined to include “the whole or a part of an
agency . . . order.” Id. § 551(13); see id. § 701(b)(2). An
“order” is “the whole or a part of a final disposition . . . of an
agency.” Id. § 551(6). The Union’s petition for review of only
part of the Authority’s Decision therefore does not deprive the
court of jurisdiction, provided that Decision is “final” under
§ 7123(a).
Although a remand can defeat the finality of an order, see
Meredith v. Fed. Mine Safety & Health Review Comm’n, 177
F.3d 1042, 1047 (D.C. Cir. 1999), for purposes of judicial
review a final agency action “need not be the last administrative
action contemplated by the statutory scheme.” Role Models
Am., Inc. v. White, 317 F.3d 327, 331 (D.C. Cir. 2003) (internal
quotation marks and brackets omitted). Rather it “must mark
the ‘consummation’ of the agency’s decisionmaking process —
it must not be of a merely tentative or interlocutory nature . . .
1
Although the Statute refers to “an unfair labor practice under
section 7118,” the correct reference is to § 7116. See Am. Fed’n of
Gov’t Emps., Local 2510 v. FLRA, 453 F.3d 500, 502 n.* (D.C. Cir.
2006).
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[and] the action must be one by which ‘rights or obligations
have been determined,’ or from which ‘legal consequences will
flow.’” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal
citation omitted); Nat’l Ass’n of Home Builders v. Norton, 415
F.3d 8, 13 (D.C. Cir. 2005); see also John Doe, Inc. v. Drug
Enforcement Admin., 484 F.3d 561, 566 & n.4 (D.C. Cir. 2007).
In adopting “a uniform rule that an unresolved issue of
attorney’s fees for the litigation in question does not prevent
judgment on the merits from being final” under 28 U.S.C.
§ 1291, the Supreme Court in Budinich v. Becton Dickinson &
Co., 486 U.S. 196, 202 (1988), explained that resolution of an
attorney’s fees claim “will not alter the order or moot or revise
decisions embodied in the order,” id. at 199, and generally “is
not part of the merits of the action to which the fees pertain,” id.
at 200. The Court recently reaffirmed this rule in Ray Haluch
Gravel Co. v. Central Pension Fund of International Union of
Operating Engineers & Participating Employers, 134 S. Ct. 773(2014).
Given the collateral nature of the determination of the
Union’s attorney’s fee request, we “discern no reason that the
Supreme Court’s holding would not apply to an appeal from the
decision of an administrative agency.” Fluor Constructors, Inc.
v. Reich, 111 F.3d 94, 95 (11th Cir. 1997); see Wagner v.
Shinseki, 733 F.3d 1343, 1349 (Fed. Cir. 2013). The finality
requirement is applied “in a ‘flexible’ and ‘pragmatic’ way,”
John Doe, Inc., 484 F.3d at 566 (quoting Ciba-Geigy Corp. v.
EPA, 801 F.2d 430, 435 (D.C. Cir. 1986) (quoting Abbott Labs.
v. Gardner, 387 U.S. 136, 149–50 (1967))), to ensure that courts
“neither improperly intrude into the agency’s decisionmaking
process nor squander judicial resources through piecemeal
review,” Union Pac. R.R. Co. v. Surface Transp. Bd., 358 F.3d
31, 34 (D.C. Cir. 2004) (quoting Ciba-Geigy Corp., 801 F.2d at
436) (internal quotation marks and brackets omitted). Neither
concern is implicated here. The Authority has made a final
determination that the Arbitrator erred in finding the IRS
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committed an unfair labor practice under 5 U.S.C. § 7116 (a)(1)
and (5). This determination satisfies each Bennett factor
because the Authority’s decisionmaking process with respect to
the statutory violation is complete and it has made a final
determination of the parties’ rights and obligations. See John
Doe, Inc., 484 F.3d at 566; see also Bennett, 520 U.S. at177–78. The Authority determined that the unchallenged
finding that the IRS had violated the National Agreement could
support the Union’s request for attorney’s fees. See NTEU, 66
F.L.R.A. at 581. That the Authority remanded the attorney’s
fees issue therefore does not suggest that its decisionmaking
process with respect to the independent unfair labor practice
question is incomplete. Furthermore, there is little realistic
possibility of piecemeal review because it is unlikely this court
would have jurisdiction to review the attorney’s fee
determination. Orders involving only an arbitrator’s award of
attorney’s fees generally have no bearing upon the law of unfair
labor practices and are therefore not judicially reviewable. See
Am. Fed’n of Gov’t Emps., Local 2510, 453 F.3d at 504–05; 5
U.S.C. § 7123(a)(1).
For these reasons, we hold that the court has jurisdiction to
consider the Union’s petition and turn to the merits.
III.
The court will set aside an order of the Authority only if it
is “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. §§ 706(2)(A), 7123(c).
Further, deference is due to the Authority’s interpretation of the
Statute under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). See NASA v.
FLRA, 527 U.S. 229, 234 (1999); Dep’t of Justice v. FLRA, 266
F.3d 1228, 1230 (D.C. Cir. 2001); 5 U.S.C. § 7105. The
Authority must “provide a rational explanation for its decision”
but in reviewing unfair labor practice determinations, the court
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“recogniz[es] that such determinations are best left to the expert
judgment of the [Authority].” FDIC v. FLRA, 977 F.2d 1493,
1496 (D.C. Cir. 1992) (internal quotation marks omitted).
Although the Statute imposes a duty to bargain over
employees’ conditions of employment, see 5 U.S.C. §§ 7102(2),
7103(a)(12), 7114(a)(4), (b)(2), it does not refer to an
employer’s obligation to provide advance notice to an employee
representative of changes to employees’ working conditions.
Rather, the “notice-and-bargaining” obligations derive from the
Authority’s interpretation of the Statute’s mandate in 5 U.S.C.
§ 7116(a)(1) and (5) that agencies must bargain in good faith
over working conditions. See, e.g., Dep’t of the Air Force, Air
Force Materiel Command, Space & Missile Sys. Ctr.,
Detachment 12, Kirtland Air Force Base, N.M., 64 F.L.R.A.
166, 173, 175 (2009); Dep’t of Veterans Affairs, Med. Ctr.,
Sheridan, Wyo., 59 F.L.R.A. 93, 94–95 (2003); Dep’t of Labor,
OSHA, Region 1, Bos., Mass., 58 F.L.R.A. 213, 215–16 (2002);
Internal Revenue Serv., Washington, D.C., 4 F.L.R.A. 488, 488,
498–99 (1980). Under that precedent, these obligations arise
only if the agency has “made a change in a policy, practice, or
procedure affecting unit employees’ conditions of
employment.” NTEU, 66 F.L.R.A. at 579. More particularly,
“where employees’ ‘volume’ of work or ‘number’ of
assignments increases, but those increases are not attributable
to any change in the agency’s policies, practices, or procedures
affecting working conditions, . . . [the] increases ‘[s]tanding
alone’ do not trigger notice-and-bargaining obligations under
§ 7116(a)(5).” Id. at 579–80 (quoting Dep’t of Veterans Affairs,
59 F.L.R.A. at 94–95).
The Union does not suggest that the Authority’s
interpretation requiring a unilateral change by an agency to
trigger notice-and-midterm bargaining is contrary to the Statute,
and we agree that the Authority’s interpretation “is certainly
consistent with the [Statute] and, to the extent the statute and
9
congressional intent are unclear, we may rely on the Authority’s
reasonable judgment.” NASA, 527 U.S. at 234. Instead, the
Union contends, as it had argued to the Authority in opposing
the IRS’s exceptions, that the Arbitrator, in emphasizing factors
within the IRS’s control, applied the correct legal standard for
changes to working conditions in finding an unfair labor
practice by the IRS. Responding, the Authority reasonably
rejected, in light of its precedent, both the Arbitrator’s approach
and the Union’s proposal for a “‘bright-line rule’ that
significantly increased workloads trigger an agency’s notice-
and-bargaining obligations under § 7116 regardless of whether
the increase is ‘precipitated by the agency.’” NTEU, 66
F.L.R.A. at 580 (quoting Union’s Opposition to the Agency’s
Exceptions at 30). The Authority explained that “[t]he Union
has not explained how an agency could unilaterally change
conditions of employment — and thereby violate § 7116 — if
it has not made any change to a policy, practice, or procedure
affecting conditions of employment.” Id.
The Union no longer presses its bright-line rule, which the
Authority viewed as seeking a change in its precedent. Instead
the Union contends first that the Authority impermissibly
ignored the Arbitrator’s factual findings that there was a change
in conditions of employment. The Union relies on the principle
that in reviewing questions of law, the Authority is to defer to
the Arbitrator’s findings of fact. See Dep’t of Commerce,
Patent & Trademark Office, 52 F.L.R.A. 358, 367 (1996);
accord Nat’l Fed’n of Fed. Emps., Local 1437, 53 F.L.R.A.
1703, 1710 & n.6 (1998). It points to the Arbitrator’s findings
that the IRS “has control” over factors that affect Case
Advocates’ workloads, including staffing and case processing
procedures. Arb. Dec. at 36. In the Union’s view, even under
the Authority’s narrow “policy, practice, and procedure”
standard the Authority’s application of it was erroneous because
the IRS was an actor in creating a different and difficult work
environment. But the Authority’s determination that the IRS
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did not make any unilateral change was consistent with the
Arbitrator’s factual finding that the IRS “divide[d] up an ever-
growing pool of cases among virtually the same number of
existing Case Advocates without making other reasonable
adjustments.” Arb. Dec. at 40. Under Authority precedent, this
was the critical finding: The IRS responded to outside factors,
but initiated no change of its own to its policies, practices, or
procedures.
Similarly, the Union’s second contention, that the
Authority’s narrow standard is inconsistent with the statutory
definition of “conditions of employment,” which includes
“personnel policies, practices, and matters . . . affecting working
conditions,” 5 U.S.C. § 7103(a)(14), is unconvincing. Although
the Case Advocates may have experienced a change in
“practices” and “matters” affecting their working conditions
between 2006 and 2009, the Arbitrator did not find that these
changes had been initiated by the IRS. The reasonableness of
the Authority’s judgment in adopting a clear threshold principle
for triggering an agency’s “notice-and-bargaining” obligations
is highlighted by the Arbitrator’s implicit recognition that any
other rule would leave an agency guessing about when its
obligations are triggered by the gradual influence of external
factors; in rejecting the Union’s request for a status quo ante
remedy, the Arbitrator observed that “it would be difficult if not
impossible to determine exactly to what point in time the [IRS]
must return.” Arb. Dec. at 46. The Authority’s determination,
relying on its precedent, that the Arbitrator erred in finding an
unfair labor practice was adequately explained and is neither
arbitrary nor capricious. See 5 U.S.C. §§ 706(2)(A), 7123(c).
And to the Union’s assertion that under the Authority’s narrow
standard unions would be denied the ability to negotiate over
changes in working conditions solely because the changes were
not initiated by an agency, the Authority responds that its
interpretation does not relieve an agency of its duty to respond
to union-initiated proposals within the duty to bargain; it only
11
limits an agency’s obligation to provide advance notice and an
opportunity to bargain to situations where the agency itself has
initiated a unilateral change. See Resp’t’s Br. at 26; see also
Library of Congress v. FLRA, 699 F.2d 1280, 1289–90 (D.C.
Cir. 1983).
Accordingly, we deny the petition for review.