DC Circuit tells FLRA: "Mind Your Own Statute"

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By on August 30, 2011 in Court Cases with 0 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.   (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. 

10-1299-1310277AFUniform

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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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