DC Circuit tells FLRA: "Mind Your Own Statute"

By on August 30, 2011 in Current Events with 15 Comments

Regular readers of this column have seen me rant (in the
words of some readers) about the Federal Labor Relations Authority (FLRA’s)
repeated arrogance in interpreting laws other Federal Agencies are charged to administer. As the current case shows, FLRA continues
this policy even after being slapped down many times, including by the Supreme
Court, for doing so. Fairly early in the
history of the current law, FLRA interpreted the Privacy Act to allow a union
to get federal employee home addresses. The Supreme Court said in essence, we don’t think so.

The current case involves a negotiability appeal in which Air Force said it couldn’t legally
clean uniforms and FLRA said the statute doesn’t say that so you have
discretion, so you must bargain. Before
the case could be heard on merits, there was an argument over whether the court
could hear the case which may be worth reading by the lawyers but need not
burden you. The court summarizes its
decision as follows:

Having
jurisdiction, we grant the petition. Whether because the plain text of the
uniform statutes does not authorize use of funds for cleaning uniforms, or
because the statutory silence creates ambiguity and the FLRA must defer to the
permissible interpretation of 10 U.S.C. § 1593 by  Department of Defense, which administers the
statute, the Air Force has no duty to bargain over uniform cleaning services.
  (Underlining
is My Emphasis)

Addressing the deference due FLRA, the Circuit says:

The
Supreme Court held that the “plain language [of section 7123(c)] evinces an
intent that the FLRA shall pass upon issues arising under [Title VII of the
Civil Service Reform Act of 1978,

known
as the Federal Service Labor-Management Relations Act, 5 U.S.C. § 7101 et
seq.
1], thereby bringing its expertise to bear on the resolution of those
issues.”

Pretty clearly, the court is saying that Federal labor law
meaning is the province of FLRA. It
says,

For
purposes of identifying our standard of review, the court has differentiated
between the FLRA’s interpretations of its organic statute and interpretations
of a non-organic statute, where both are at issue
.  See, e.g., Ass’n of Civilian Technicians, Tony
Kempenich Mem’l Chapter 21 v. FLRA
, 269 F.3d 1119, 1121 (D.C. Cir. 2001). The
court has held that it “owe[s] no deference to the FLRA’s statutory
interpretation where it has endeavored to ‘reconcile its organic statute . . .
with a[nother] statute . . . not within its area of expertise.
’” U.S.
Dep’t of Veterans Affairs v. FLRA
, 9 F.3d 123, 126 (D.C. Cir. 1993) (second
alteration in original) (citation omitted).”

The Court goes on to say,

“Here,
the Air Force does not challenge the FLRA’s interpretation of its organic
statute (5 USC Chapter 71) and thus presents no occasion to afford the FLRA deference;
the Air Force does not contest the FLRA’s methodology of determining when a
bargaining proposal is “specifically provided for by Federal statute,” 5 U.S.C.
§ 7103(a)(14), viz., “whether the statute at issue provides the Agency
the discretion to agree to the proposal,” Nat’l Fed’n of Fed. Emps., Local
1669
, 55 F.L.R.A. at 67. Instead, the Air Force challenges the FLRA’s
failure to defer to its interpretation of 10 U.S.C. § 1593 and 5 U.S.C. § 5901,
which are not administered by the FLRA.
The court reviews de novo the
FLRA’s interpretation of a statute it is not charged with administering. See,
e.g., Tony Kempenich Mem’l
, 269 F.3d at 1121.”

And finally,

“…the
FLRA owes deference to the Department of Defense’s reasonable interpretation of
the second uniform statute, 10 U.S.C. § 1593, because the Department
administers that statute
, see Gen. Servs. Admin., 86 F.3d at 1187, and
would exceed its authority by ruling that, in the absence of a provision
specifically addressing the maintenance of uniforms, the Air Force has
discretion to negotiate with the Union on uniform cleaning services
, see
Nat’l Fed’n of Fed. Emps., Local 1669
, 55 F.L.R.A. at 67.

Cases like this have
happened over and over. 

Perhaps the
decision writers were on spring break when Reading Comprehension 101 was
offered in the elementary or high school curriculum. Hey! FLRA! You’re only authorized to interpret and apply your own statute! Duh! A recent example which should have
embarrassed their lawyers into at least reading the case law involved the
National Labor Relations Board having to ignore an FLRA order over a unit
determination issue and get a court to sit on the agency.

As always, what is
scribbled here is my responsibility alone. 

For those Agency staff
interested in a 2011 look at the state of Federal labor relations, I’ll be
conducting an Advanced Labor Relations Workshop in Boston MA this fall. We’ll cover “Covered By”, ULP Handling,
Dealing with Pre-decisional Involvement, Strengthening Your Agency’s Grievance
and Arbitration Effort and other good stuff. If interested in more information, please connect with Dennis Hermann at
dennish@grainc.com. I’ll let you know exact dates soon.

10-1299-1310277AFUniform

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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