United States Department of Energy v. Federal Labor Relations Authority

Enforcement denied by published opinion. Judge WILKINS wrote the majority opinion, in which Judge WILLIAMS joined. Judge LUTTIG wrote an opinion concurring in the judgment.

OPINION

WILKINS, Circuit Judge:

The United States Department of Energy (the Department) petitions for review of a decision and order of the Federal Labor Relations Authority (the Authority) that concluded that the Department violated the Federal Service Labor-Management Relations Act (FSLMRA), 5 U.S.C.A. §§ 7101-7135 (West 1996). .The Authority held that the violation occurred when the Department disapproved of a clause in a collective bargaining agreement that would have required midterm bargaining regarding union-initiated proposals not included in or covered by the collective bargaining agreement. The Authority cross-petitions for enforcement of its decision and order.¹ We hold that the Department is not required to bargain with respect to the provision and therefore deny enforcement of the decision and order of the Authority.

I.

A.

The FSLMRA establishes a comprehensive set of rules governing collective bargaining between federal-sector employers and employees. See U.S. Department of Health & Human Servs. v. FLRA, 844 F.2d 1087, 1088-89 (4th Cir.1988) (en banc) [hereinafter HHS ]. Like their counterparts in the private sector, federal agencies and unions have a duty to “meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement.” 5 U.S.C.A. § 7114(a)(4). This duty to bargain generally includes all “condition[s] of employment” except those explicitly exempted by the FSLMRA. See 5 U.S.C.A. § 7114(b)(2); Nuclear Regulatory Comm’n v. FLRA, 895 F.2d 152, 154 (4th Cir.1990) [hereinafter NRC ].² However, the duty to negotiate “exists only ‘to the extent not inconsistent with any Federal law or any Government-wide rule or regulation.’ ” NRC, 895 F.2d at 154 (quoting 5 U.S.C.A. § 7117(a)(1)).³ Failure to negotiate in good faith is an unfair labor practice. See 5 U.S.C.A. § 7116(a)(5), (b)(5).

In addition, the duty to negotiate “does more than simply require an agency to negotiate; it subjects the agency to the possibility that the proposal will become binding.” HHS, 844 F.2d at 1089. If good faith negotiations fail, the FSLMRA provides for the resolution of the impasse by the Federal Services Impasses Panel (the Impasses Panel), which is vested with the authority to impose negotiable proposals on the parties. See 5 U.S.C.A. § 7119(c)(5)(B), (C); Department of Defense, Office of Dependents Sch. v. FLRA, 879 F.2d 1220, 1222 (4th Cir.1989). But, the Impasses Panel does not possess the authority to impose terms that are inconsistent with the FSLMRA or any other federal law. See id. Accordingly, the head of an agency may disapprove of a term imposed upon the agency by the Impasses Panel pursuant to 5 U.S.C.A. § 7114(c)(1) on the basis that the term is not consistent with applicable law, ie., is nonnegotiable. See id.; American Fed’n of Gov’t Employees v. FLRA, 778 F.2d 850, 856-57 (D.C.Cir.1985).⁴ If the agency disapproves of a provision included in a collective bargaining agreement by order of the Impasses Panel, the union, in response, may either seek a negotiability determination by the Authority under 5 U.S.C.A. § 7117(c)(1) or may file an unfair labor practices charge against the agency pursuant to 5 U.S.C.A. § 7118.⁵ See Department of Defense Dependents Sch., Alexandria, Va. v. FLRA 852 F.2d 779, 784 (4th Cir.1988); American Fed’n of Gov’t Employees, 778 F.2d at 855-56. In either case, the Authority must determine whether the provision in question is consistent with the FSLMRA or other applicable law.

B.

The material facts are not in dispute. The Department employs approximately 200 union workers at the Morgantown Energy Technology Center (METC) in Morgantown, West Virginia. The American Federation of Government Employees, Local 1995, AFL-CIO (the Union) is the certified exclusive representative of METC employees for collective bargaining purposes. See 5 U.S.C.A. § 7114(a)(1).

METC and the Union are parties to a collective bargaining agreement. During negotiations for a successor agreement, the Union proposed the following “reopéner” clause:

The Employer will be obligated to bargain in good faith on any Union-proposed changes in conditions of employment during the term of this agreement as long as the subject of any specific proposal is not controlled by this agreement and as long as the Union has not clearly and unmistakably waived bargaining over all proposals.

J.A. 6. METC and the Union failed to agree on the inclusion of this language in the successor agreement; consequently, the Union requested assistance from the Impasses Panel. Rejecting METC’s contention that the proposal was nonnegotiable, the Impasses Panel concluded that the Union had a statutory right under the FSLMRA to initiate midterm bargaining and that the failure to include a midterm bargaining provision in the collective bargaining agreement could be construed as a waiver by the Union of its statutory right.⁶ Accordingly, the Impasses Panel directed the parties to adopt a modified version of the Union’s proposed language: J.A. 8.⁷

The Employer will be obligated to bargain in good faith on any negotiable Union-initiated proposals concerning matters that are not contained in or covered by the collective-bargaining agreement, unless the Union has waived its right to bargain about the subject matter involved.

Subsequently, the Director of Personnel for the Department disapproved the collective bargaining agreement, see 5 U.S.C.A. § 7114(c), on the basis that midterm bargaining would create a system of rolling bargaining and result in endless negotiation in contravention of the express aim of the FSLMRA to foster effective and efficient government, see 5 U.S.C.A. § 7101(a)(1)(B), (2).

In response, the Union filed unfair labor practice charges with the Authority, contending that the Department, by disapproving of the language included in the collective bargaining agreement by order of the Impasses Panel, impermissibly interfered with the collective bargaining relationship in violation of 5 U.S.C.A. § 7116(a)(1), (5). The Union also asserted that the Department failed to cooperate in impasse procedures in violation of 5 U.S.C.A. § 7116(a)(1), (6). Relying on Social Security Administration v. FLRA, 956 F.2d 1280, 1281 (4th Cir.1992) [hereinafter SSA ], the Department argued that its disapproval of the reopener clause was justified because the language imposed by the Impasses Panel was not consistent with applicable law and would frustrate the purpose of the FSLMRA to foster “effective and efficient” government and would create unstable labor relations. The Authority rejected the Department’s argument, determining that SSA addressed only the issue of whether an agency has a statutory duty to engage in midterm bargaining over union-initiated proposals, leaving open the question of whether such provisions are negotiable. See Department of Energy, Washington, D.C., 51 F.L.R.A. 124, 127 (1995).⁸ The Authority then determined that the reopener clause was not inconsistent with the FSLMRA or any other law and thus was negotiable. See id. at 128-29.

Having concluded the provision was negotiable, the Authority determined that the Department had failed to cooperate with the decision of the Impasses Panel in violation of 5 U.S.C.A. § 7116(a)(1), (6). See id. at 130. Additionally, the Authority ruled that the Department unlawfully interfered with the collective bargaining process between METC and the Union in violation of 5 U.S.C.A. § 7116(a)(1), (5). See id. The Authority ordered the Department to rescind its disapproval of the provision imposed by the Impasses Panel and to direct METC to incorporate the reopener clause into the collective bargaining agreement. See id. at 130-31.

II.

A.

We will set aside a decision of the Authority if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.A. § 706(2)(A) (West 1996); see Bureau of Alcohol, Tobacco 6 Firearms v. FLRA, 464 U.S. 89, 97 n. 7, 104 S.Ct. 439, 444 n. 7, 78 L.Ed.2d 195 (1983). Although “the Authority is entitled to considerable deference when it exercises its special function of applying the general provisions of the [FSLMRA] to the complexities of federal labor relations,” reviewing courts “must not rubber-stamp ... administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” Id. at 97, 104 S.Ct. at 444 (internal quotation marks omitted) (second alteration in original). When a decision of the Authority undermines congressional intent with respect to the FSLMRA, it should not be enforced. See HHS, 844 F.2d at 1090. Mindful of these principles, we consider whether the decision and order of the Authority requiring the Department to rescind its disapproval of the reopener clause is arbitrary, capricious, an abuse of discretion, or is not in accordance with law.

B.

The parties agree that the sole issue before us is whether a clause that requires an agency to bargain midterm with respect to union-initiated proposals is inconsistent with federal law and therefore is not negotiable. See 5 U.S.C.A. § 7117(a)(1); U.S. Nuclear Regulatory Comm’n, Washington, D.C. v. FLRA, 25 F.3d 229, 231 (4th Cir.1994). Relying on SSA, the Department contends that a midterm bargaining proposal is nonnegotiable because midterm bargaining contravenes the language, express statutory purpose, and legislative history of the FSLMRA. The Authority and the Union argue that SSA leaves open the question of whether such a provision is negotiable. Further, the Authority and the Union assert that the reopener clause is not inconsistent with federal law— and therefore is negotiable—because it does not ran afoul of any specific statutory provision.

Our reasoning in SSA compels the conclusion that a clause requiring an agency to engage in union-initiated midterm bargaining is inconsistent with the FSLMRA and, consequently, is not negotiable. In SSA, we held that “union-initiated midterm bargaining is not required by the [FSLMRA] and would undermine the congressional 'policies underlying the statute.” SSA 956 F.2d at 1281 (emphasis added). Such bargaining is at odds with the language of the FSLMRA, which “eontemplate[s] that [the duty to bargain] arises as to only one, basic agreement.” Id. at 1284; see 5 U.S.C.A. § 7114(a)(4) (requiring agency and union to meet and negotiate “for the purposes of arriving at a collective bargaining agreement ”) (emphasis added); see also 5 U.S.C.A. § 7114(b)(1) (referring to a single collective bargaining agreement); 5 U.S.C.A. § 7114(b)(5) (directing parties “to implement such agreement”). Moreover, SSA makes clear that union-initiated midterm bargaining would frustrate the express purpose of the FSLMRA to foster stability and an effective and efficient government by resulting in “seriatim” bargaining. SSA 956 F.2d at 1288. Such a piecemeal approach to collective bargaining in the federal sector would not encourage parties to “foresee potential labor-management relations issues[ ] and resolve those issues in as comprehensive a manner as practicable.” Id. (internal quotation marks omitted).

The Authority and the Union counter that SSA does not control this case because SSA addressed only the statutory duty of an agency to engage in midterm bargaining, leaving open the issue of the negotiability of a contractual provision requiring union-initiated midterm bargaining. We agree that the question of whether the FSLMRA imposes a statutory duty differs from the question of whether an agency must negotiate with a union regarding the inclusion of a clause in a collective bargaining agreement. Under the present circumstances, however, this distinction is more apparent than real.

We concluded in SSA that not only is union-initiated midterm bargaining not mandated by the FSLMRA, but also that it is contrary to the FSLMRA. See id. at 1281. Accordingly, the Department properly disapproved of the clause. See Department of Defense, Office of Dependents Sch., 879 F.2d at 1222 (“[A]n agency head may disapprove a collective bargaining agreement, even if panel-imposed, by determining it to be not ‘in accordance with the provisions of [the FSLMRA] (citation omitted) (quoting 5 U.S.C. § 7114(c)(2))). Furthermore, were we to find this type of provision negotiable, we would effectively vitiate SSA Because the Impasses Panel adheres to the position of the Authority that the Department has a statutory duty to engage in midterm bargaining, we cannot envision a case in which the Impasses Panel would fail to impose upon an agency a midterm bargaining clause like the one before us. Indeed, the Authority has consistently found that a bargaining proposal that simply restates a statutory bargaining obligation is negotiable. See, e.g., National Fed’n of Fed. Employees Local 405, 42 F.L.R.A 1112, 1135-36 (1991). Thus, a union could circumvent SSA by the mere expedient of negotiating to impasse on a midterm bargaining provision, essentially requiring an agency to bargain midterm over union proposals despite our determination that such a requirement is contrary to the FSLMRA.

We also reject the contention of the Authority and the Union that the clause is negotiable because it does not contravene a specific statutory provision. The duty to bargain does not include proposals that trench upon matters specifically addressed by a federal statutory provision or matters that are inconsistent with federal law. See NRC, 895 F.2d at 154. These are two separate limitations on the duty to negotiate, requiring us to determine whether the proposal at issue involves “matters specifically provided for by Federal statute, or more generally, ... [matters that] are inconsistent with any Federal law.” Department of Defense v. FLRA 685 F.2d 641, 648 (D.C.Cir.1982) (citations and internal quotation marks omitted) (emphasis added); accord NRC, 895 F.2d at 154. Thus, the duty of the Department to negotiate clearly does not extend to matters that are inconsistent with a federal statute, even if there is no specific statutory provision that prohibits the bargaining proposal. Otherwise, a party could negotiate to impasse a proposal that, as in the case before us, is at odds with the policies underlying a statute and is wholly contrary to congressional intent.⁹

III.

For the foregoing reasons, we conclude that the Department is not required to negotiate with the Union regarding a clause that mandates union-initiated midterm bargaining and accordingly that the Department properly disapproved of the reopener clause. Because the decision of the Authority is not in accordance with law, we grant the Department’s petition for review and deny the Authority’s cross-application for enforcement.

ENFORCEMENT DENIED.

1 . The American Federation of Government Employees, Local 1995, intervenes on behalf of the Authority, seeking enforcement of the order.

2 . The statute defines “conditions of employment" as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions.” 5 U.S.C.A. § 7103(a)(14). A federal agency has no duty to negotiate over policies, practices or matters that are specifically provided for by federal statute. See 5 U.S.C.A. § 7103(a)(14)(C); NRC, 895 F.2d at 154. Likewise, an agency has no duty to bargain with respect to matters that relate to prohibited political activities under 5 U.S.C.A. § 7103(a)(14)(A) or that involve the classification of any position under 5 U.S.C.A. § 7103(a)(14)(B). See Library of Congress v. FLRA, 699 F.2d 1280, 1284 n. 16 (D.C.Cir.1983).

3 .Other matters expressly excepted from the scope of the duty of an agency to bargain include those that are reserved to management under the management rights clause contained in 5 U.S.C.A. § 7106(a) or that conflict with an agency rule or regulation for which a compelling need exists pursuant to 5 U.S.C.A. § 7117(a)(2). See Library of Congress, 699 F.2d at 1284 n. 16.

4 . Disapproval of a provision in a collective bargaining agreement by the head of an agency is essentially "an allegation of nonnegotiability under § 7117(c).” American Fed’n of Gov’t Employees, 778 F.2d at 857.

5 . If the Authority concludes that the provision imposed by the Impasses Panel is not inconsistent with law, disapproval of the provision by the agency head amounts to a failure to cooperate in impasse procedures. See American Fed’n of Gov’t Employees, 778 F.2d at 856. Failure to cooperate in impasse procedures or decisions of the Impasses Panel constitutes an unfair labor practice. See 5 U.S.C.A. § 7116(a)(6), (b)(6).

6 .The proposition that the FSLMRA creates a statutory obligation for agencies to engage in midterm bargaining regarding union-initiated proposals is directly contrary to the law of this circuit. See Social Security Admin. v. FLRA, 956 F.2d 1280, 1281 (4th Cir.1992). In reaching its decision, however, the Impasses Panel noted that it is bound by rulings of the Authority and that the Authority chooses not to follow our holding. Rather, the Authority adheres to National Treasury Employees Union v. FLRA, 810 F.2d 295, 301 (D.C.Cir.1987), which reaches the contrary conclusion that federal employers are statutorily obligated to bargain midterm over union proposals. See Internal Revenue Serv., 29 F.L.R.A. 162, 164-66 (1987).

7 . The Impasses Panel modified the reopener clause because it found the proposed language to be ambiguous.

8 . The Authority explained in its order that it declines to follow our decision in SSA as binding precedent in any case. See Department of Energy, Washington, D.C., 51 F.L.R.A. at 127 n. 4. An agency generally must “follow the law of the circuit whose courts have jurisdiction over the cause of action.” Hyatt v. Heckler, 807 F.2d 376, 379 (4th Cir.1986). Here, however, the venue provision of the FSLMRA is such that the Authority cannot know which circuit court of appeals will review its decision. See 5 U.S.C.A. § 7123(a) (allowing a "person aggrieved by any final order of the Authority” to seek review in the "court of appeals in the circuit in which the person resides or transacts business” or in the Court of Appeals for the District of Columbia Circuit). Thus, although "[w]e cannot ... defer to a legal determination which flouts our previous statements on the law,” PPG Indus., Inc. v. NLRB, 671 F.2d 817, 823 n. 9 (4th Cir.1982), we recognize that the Authority is in a difficult position when the circuit courts of appeals that may review its decisions have reached differing conclusions, see Johnson v. United States R.R. Retirement Bd., 969 F.2d 1082, 1091 (D.C.Cir.1992) (noting that nonacquiescence may result when "a broad venue statute ... forces the agency to act without knowing which circuit court [of appeals] ultimately will review its actions”).

9 . The Union argues finally that midterm bargaining does not produce the ills identified in SSA. Specifically, the Union contends that union-initiated midterm bargaining does not lead to the dispersal or manipulation of the bargaining process and, therefore, is not inconsistent with the FSLMRA. Moreover, the Union asserts that adoption of the Department’s position would actually frustrate the statutory policy of fostering an effective and efficient government. See 5 U.S.C.A. § 7101(b). We reject these arguments, each having been considered and dismissed in SSA. See SSA, 956 F.2d at 1287 (observing that "[a] union can gain a tactical advantage by negotiating—and then arbitrating—issues seriatim rather than as a unified package”); id. at 1288 (explaining that “[ujnion-initiated midterm bargaining risks serious interference” with the "paramount right of the public to as effective and efficient a Government as possible”) (internal quotation marks omitted); id. (noting that “midterm bargaining would encourage dispersal of the collective bargaining process”) (internal quotation marks omitted). We decline to address the Union's suggestion that SSA was wrongly decided. SSA is the law in this circuit until it is overruled by the en banc court or superseded by a decision of the Supreme Court. See Chisolm v. Transouth Fin. Corp., 95 F.3d 331, 337 n. 7 (4th Cir.1996).