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04/03/87 American Federation of v. Federal Labor


April 3, 1987




Before ROBINSON and STARR, Circuit Judges, and WRIGHT, Senior Circuit Judge.


American Federation of Government Employees, AFL-CIO, Local

Petition for Review of an Order of the Federal Labor Relations Authority


Opinion for the Court filed by Circuit Judge ROBINSON.

ROBINSON, Circuit Judge: Local 2303 of the American Federation of Government Employees challenges an order of the Federal Labor Relations Authority dismissing as untimely the union's petition for review of a collective bargaining dispute over the negotiability of certain issues under provisions of the Civil Service Reform Act of 1978. *fn1 We find FLRA's decision was neither arbitrary nor capricious, and we therefore affirm. I

In 1984, AFGE Local 2303 was engaged in bargaining with the Federal Aviation Administration over the status of employees at National and Dulles Airports. On August 24 of that year, the union submitted a request for a written allegation concerning the negotiability of a proposal that the agency provide, under certain conditions, overtime compensation and travel expenses to employees commuting to the airports. *fn2 The agency replied on August 31 by declaring the proposal to be inconsistent with federal regulations and thus outside the duty to bargain. *fn3 Instead of then appealing the decision to the Authority, the union continued to bargain, and on October 15 submitted to the agency a second, abridged proposal. *fn4 The latter, in response, asserted that the new proposal contained only language it had already deemed non-negotiable, reaffirmed its August 31 position, and announced that "[a] separate allegation of non-negotiability [was] not appropriate." *fn5

Resigned to seeking the Authority's intercession, the union, on October 29, 1984, petitioned for review of the agency's non-negotiability allegation. *fn6 The petition would have been timely had the statutorily-prescribed fifteen-day time limit *fn7 been measured from the date of the agency's rejection of the second proposal, but the Authority held that the October 23 letter "was, in essence, only a restatement of the earlier allegation." *fn8 The Authority thus deemed the petition a belated attempt to seek review of the August 31 allegation of non-negotiability and accordingly dismissed the petition as untimely. *fn9 II

We are to sustain the Authority's order unless it is arbitrary, capricious, an abuse of discretion, or otherwise unlawful. *fn10 The potential locus of arbitrariness in the present litigation is the Authority's conclusion that the union's second proposal "effected no changes in the substance or language" of the proposal. *fn11 The union contends that the revised proposal was "materially different" *fn12 from the original, and that the agency's letter of October 23 should therefore have triggered a new fifteen-day appeal period. The union concedes that the second proposal contained no new language, but insists that its elimination of specific provisions regarding travel-time compensation was sufficient to differentiate the two proposals and qualify the truncated submission for an independent negotiability allegation. Lack of explication in the agency's August 31 letter, *fn13 the union says, left it unable to ascertain the agency's view of the asserted conflict between the first proposal and federal law; without guidance, the union adds, it was left to speculate as to the nature of the agency's negotiability objections, and was led to make the deletions whereby the second proposal was fashioned from the first in an effort to respond to them. *fn14 The union maintains that it acted reasonably when it chose to continue negotiations in an attempt to modify the proposal to the agency's satisfaction, and that it should not be penalized for its failure to comprehend to breadth of the agency's objection. *fn15

For its part, the Authority simply reiterates its conclusion that the union's second proposal merely omitted portions of its first proposal, *fn16 which the agency had already declared nonnegotiable in its entirety. In its opinion dismissing the union's petition for review as untimely filed, the Authority characterized the second proposal as "merely a recombination of some of the parts of the original three part proposal which the Agency previously determined, on August 31, 1984, to be nonnegotiable," and expressed the view that "the recombination of those parts effected no changes in the substance or language of the parts." *fn17 In announcing this decision, the Authority provided no test for determining whether one proposal is the same as another; instead, the Authority rested its opinion on the narrow judgment that the abridged proposal came within the scope of the agency's original allegation of non-negotiability.

Although under other circumstances a more elaborate statement of the Authority's reasoning might be necessary, *fn18 we cannot disturb its conclusion in this case. The Authority is free to proceed on a case-by-case basis without formally articulating rules of general applicability, *fn19 and its expert constructions and applications of its organic statute are generally entitled to considerable deference. *fn20 Here the Authority determined that in light of the agency's unqualified allegation of non-negotiability in response to the union's first proposal, the union's second submission, which lacked any new proposition or language, was in essence a resubmission of the same proposal for purposes for Section 7117 (c) (2)'s filing deadline. The Authority's judgment was reasonable under all the circumstances, and we decline to overturn it. III

Perhaps conscious of the fragility of its principal challenge, the union also makes several arguments purporting to demonstrate dire consequences for collective bargaining posed by the Authority's decision. According to the union, the decision will disrupt the collective bargaining process by arming agencies with the means to force immediate and time-consuming appeals of non-negotiability allegations--thus suspending further negotiations over issues touched on by the contested proposals, obstructing bargaining generally, and ensnaring unions into a fruitless cycle of agency objection and appeal. The Authority's decision, the union claims, impedes the give-and-take between negotiating parties that is a necessary part of the bargaining process. *fn21

We have often chided the Authority for its tardiness in processing appeals, *fn22 but this case does not involve any claim of unreasonable delay. More to the point, the union's fear that the Authority's decision invites manipulation by agencies is unjustified because the decision to trigger the review process, whose stringent time limit the union here protests, remains in the hands of the bargaining union, not the agency. The Authority's regulations clearly inform that the fifteen-day period for appealing agency allegations does not begin to run until the union receives an agency's written allegation of non-negotiability which has been issued in response to a written union request for a negotiability determination; *fn23 the union itself thus controls commencement of the appeal period. Where an agency issues an allegation not solicited by a bargaining union, the Authority holds it starts the running of the fifteen-day period only if the union chooses to bring an immediate appeal; the union may, instead, continue to negotiate and then lunch the review process by formally requesting a written allegation. *fn24 Finally, and perhaps most importantly, informal oral assessments of negotiability of proposals advanced during negotiations may be elicited from the agency without activating the formal appeal process. *fn25 As the Authority has observed,

by providing that an agency's allegation that a union's proposal is not within the duty to bargain must be made only in response to the union's request for an allegation, the Rule ensures that a union will not be diverted from further negotiations and forced to file an appeal before it wishes to do so, simply to avoid losing its right of appeal by the running of the time limit. Rather, the Rule preserves the union's right until it requests an allegation, thereby enabling it first to propose alternatives or to bargain over agency counterproposals as a means of resolving the dispute without invoking third-party intervention. *fn26

The Authority's decision in this case in no measure diminishes a union's control over initiation of the appeal process.

The union further suggests that the Authority's order compromises the integrity of the process established by Congress for collective bargaining. By contrast, it appears to use that concerns of procedural integrity support the disposition the Authority made here. The procedural governing appeals of non-negotiability allegations obviously demands some judgment as to whether serial proposals are identical or distinct, for otherwise the time limits of Section 7117(c) would become meaningless. Without a judgment of the sort the Authority exercised in this case, a union could resubmit any number of substantially identical proposals for agency allegation and thereby extend indefinitely the period during which it is eligible to file for review of that allegation.

The union objects additionally to the Authority's decision on the grounds that it impedes the give-and-take necessary for effective collective bargaining. The latitude the union seeks in appealing might, as a practical matter, facilitate bargaining in some instances, but it does not comport with the scheme Congress established in Section 7117 (c) to ensure speedy resolution of negotiability disputes. Congress did not leave judgments on proper timing of agency review to the union's discretion; once a union has solicited a formal written negotiability allegation, it must appeal from that allegation, if it so wishes, within the fifteen-day period Congress prescribed. *fn27 As this court has observed, "the appeals procedure is . . . intended to resolve negotiability disputes speedily, thereby minimizing the interruption of normal collective bargaining. If Congress' purpose is to be achieved, the statutory time limits for filing union appeals, agency statements and union responses must be strictly observed." *fn28 The Authority's exercise of judgment in this case was necessary to preserve the integrity of this process, and appears to use reasonable in all respects.

The union freely chose to request from the agency a written allegation concerning the negotiability of its initial proposal. By its own action it thus set into motion the review process in which it then failed timely to participate. The union's objection to time-barring of its appeal is therefore rejected, and the Authority's order in this case is


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