Department of the Treasury v. Federal Labor Relations Authority
Department of the Treasury v. Federal Labor Relations Authority
Opinion of the Court
delivered the opinion of the Court.
In this case we review the determination of the Federal Labor Relations Authority (FLRA or Authority) that, under Title VII of the Civil Service Reform Act of 1978 (Act), 5 U. S. C. §7101 et seq., the Internal Revenue Service (IRS) must bargain with the National Treasury Employees Union (NTEU or Union) over a proposed contract provision subjecting to grievance and arbitration procedures claims that the IRS had failed to comply with an Office of Management and Budget (OMB) Circular relating to the “contracting out” of work.
I
Title VII of the Civil Service Reform Act establishes a collective-bargaining system for federal agencies and their employees, under the administration of the FLRA. The Act recognizes the right of federal employees to form and join unions, 5 U. S. C. § 7102, and imposes upon management officials and employee unions the duty to “negotiate in good faith for the purposes of arriving at a collective bargaining agreement.” § 7114(a)(4). A collective-bargaining agreement must provide procedures “for the settlement of grievances,” § 7121(a)(1), which are defined as “complaint[s] . . . concerning . . . any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment,” § 7103(a)(9)(C)(ii); and the agreement must “provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration” which may be invoked by either party.
Office of Management and Budget Circular A-76 generally directs federal agencies to “contract out” to the private sector their non-“governmental” activities (e. g., data processing) unless certain specified cost comparisons indicate that the activities can be performed more economically “in house.” Executive Office of the President, OMB Circular A-76, as revised, 48 Fed. Reg. 37110 (1983). The Circular also requires agencies to establish an administrative appeals procedure to resolve complaints by employees or private bidders relating to “determinations resulting from cost comparisons performed in compliance with [the] Circular,” or relating to decisions to contract out where no cost comparison is required. OMB Circular A-76, Supp. 1-14, 1-15 (1983).
During the course of contract negotiations with the IRS, respondent NTEU put forward a proposal that, with respect to contracting-out decisions employees wished to contest, the “grievance and arbitration” provisions of the collective-bargaining agreement would constitute the “internal appeals procedure” required by the Circular.
The FLRA held that the IRS was required by §§ 7114 and 7121 to negotiate over the proposal. In its view the IRS’ failure to comply with Circular A-76 would be a “violation ... of [a] law, rule, or regulation” affecting “conditions of employment,” so that an employee complaint on the matter would qualify as a “grievance” for which procedures must be specified in the collective-bargaining agreement. 27 F. L. R. A. 976, 978-979 (1987). The FLRA found that the union’s proposal was not precluded by § 7106(a)(2)(B)’s reservation of management authority over contracting-out determinations, because it “would only contractually recognize external limitations on management’s right.” Id., at 978.
The Court of Appeals for the District of Columbia Circuit affirmed the Authority’s decision. 274 U. S. App. D. C. 135, 862 F. 2d 880 (1988). We granted certiorari. 493 U. S. 807 (1989).
II
The management rights provision of the Act provides, in pertinent part:
“(a) [N]othing in this chapter [i. e., the Act] shall affect the authority of any management official of any agency—
“(2) in accordance with applicable laws—
“(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in*927 grade or pay, or take other disciplinary action against such employees;
“(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;
“(C) with respect to filling positions, to make selections for appointments from—
“(i) among properly ranked and certified candidates for promotion; or
“(ii) any other appropriate source . . . 5 U. S. C. § 7106 (emphasis added).
In the proceedings below and again before this Court, the IRS has argued that even when an agency’s decision to contract out violates OMB Circular A-76 it is still a decision “in accordance with applicable laws” and is thus immunized by the foregoing provisions from contractually imposed substantive controls — rendering the proposal here nonbargainable.
The FLRA’s position is that the management rights provisions of §7106 do not trump §7121, which entitles the union to negotiate and enforce procedures for resolving any “grievance” as defined in §7103 — that is, any claimed “violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.” 5 U. S. C. § 7103(a)(9)(C)(ii) (emphasis added). Thus, according to the
A
We do not lightly overturn the FLRA’s construction of the Act it is charged with administering. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 97 (1983). We must accept that construction if it is a reasonable one, even though it is not the one we ourselves would arrive at. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984); NLRB v. Food and Commercial Workers, 484 U. S. 112, 123 (1987). For the reasons that follow, however, we conclude that the FLRA’s construction is not reasonable.
The FLRA’s position is flatly contradicted by the language of §7106(a)’s command that “nothing in this chapter” — i. e., nothing in the entire Act — shall affect the authority of agency officials to make contracting-out determinations in accordance with applicable laws.' Section 7121 is among the provisions covered by that italicized language.
The FLRA presents four arguments to overcome this plain text. First, it contends that reading § 7106(a) to supersede
Second, the FLRA argues that § 7121 is among the “applicable laws” referred to in § 7106(a)(2) — so that § 7106(a) never excuses agency management from negotiating, and submitting to, grievance procedures over the exercise of reserved management rights. This cannot be the case. If the negotiation and grievance provisions of the Act, §§ 7114 and 7121, are “applicable laws” under this section, then presumably so is all the rest of the Act, there being no basis for treating those provisions specially. Thus, under the FLRA view, § 7106(a) in effect says that “nothing in this chapter shall affect the authority of management to make contracting out decisions in accordance with this chapter” — a pointless tautology. It is clear that the term “applicable laws” refers to laws outside the Act.
Third, the FLRA argues that the NTEU proposal is not barred by § 7106(a) because, in the words of the FLRA’s opinion, its incorporation into the collective-bargaining agreement would “not itself establish any particular substantive limitation on management in the exercise of its right to make contracting-out decisions”; rather, it “would only contractually recognize and provide for the enforcement of external limitations on management’s right.” 27 F. L. R. A., at 980. Referring to one of its earlier decisions, the FLRA emphasizes that in a negotiated grievance proceeding the arbitrator would not second-guess the IRS on discretionary aspects of the contracting-out determination, but would only review claims “that the agency failed to comply with mandatory and
Finally, the FLRA suggests that the term “applicable laws” in § 7106(a)(2) is coextensive with the phrase “any law, rule, or regulation” in § 7103(a)(9)(C)(ii), so that any agency contracting decision that gives rise to a grievance is by definition not “in accordance with applicable laws.” The FLRA did not explicitly use this reasoning in its decision here, but it seems to have done so in other cases. See, e. g., AFSCME Local 3097 v. Department of Justice, Justice Management
B
At oral argument, counsel for NTEU urged that we could sustain the FLRA’s decision on the ground that the term “applicable laws” includes at least those regulations that carry the “force of law,” and that OMB Circular A-76 is such a regulation. Tr. of Oral Arg. 36. We cannot, however, adopt this ground. While we think it a permissible (though not an inevitable) construction of the statute that the term “applicable laws” in § 7106(a)(2) extends to some, but not all,
The IRS contends that even though the term “applicable laws” includes some rules and regulations, under no reasonable construction could it include internal directives like OMB Circular A-76. We are poorly situated to evaluate that argument, since the Court of Appeals did not consider it, neither of the respondents briefed it, and counsel for respondents addressed it in only the most cursory fashion at oral argument. It is, moreover, an argument that calls for a very difficult abstract conclusion, to wit, that no conceivable reasonable interpretation of “applicable laws” could include this Circular. The Court of Appeals, on remand, may wish to enter into that inquiry, or may prefer to await the FLRA’s specification, on remand, of the particular permissible interpretation of “applicable laws” (if any) it believes embraces the Circular. In any event, we decline to consider the point at this stage in the proceedings.
Finally, the IRS argues that the decision below should be reversed outright on the ground that the Union’s proposal is inconsistent with the “no arbitration” language in OMB Circular A-76, and is therefore nonnegotiable under § 7117, which provides that “the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation.” 5 U. S. C. § 7117(a)(1) (emphasis added). As this argument was not raised or considered in the Court of Appeals, we do not reach it. See EEOC v. FLRA, 476 U. S. 19, 24 (1986) (per curiam).
The judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.
It is so ordered.
Because the Court remands for further proceedings I believe are unnecessary, I respectfully dissent. As I read the opinion below, the agency found OMB Circular A-76 to be an “applicable law” within the meaning of the Civil Service Reform Act of 1978’s management rights provision, 5 U. S. C.
Finally, I take issue with the Court’s expansive view of the management rights provision as abrogating any union rights vis-a-vis decisions such as contracting out, so long as agency decisions are made consistently with applicable laws. See ante, at 931. Section 7106(a) does not purport to make other provisions of the Act wholly inapplicable to the enumerated subject areas. It says only that nothing in the statute “shall affect the authority of any management official of any agency” to make certain types of decisions. (Emphasis added.) An exercise of union rights that does not affect management’s existing authority is fully consistent with this provision. Insofar as the Union proposal would require merely what is already required by OMB Circular A-76, it would not affect the Internal Revenue Service’s authority to make contracting out decisions. Therefore it would not infringe the agency’s reserved rights. Because I do not read the Authority’s decision as clearly relying on this ground, I 'do not think it necessary for the Court to have reached it.
The proposed contract term read: “The Internal Appeals Procedure shall be the parties’ grievance and arbitration provisions of the Master Agreements.” 27 F. L. R. A. 976 (1987). The Court of Appeals characterized the proposal as “establishing] the ‘grievance and arbitration’ provisions of the master labor agreement between them as the internal ‘administrative appeals procedure’ mandated by the Supplement to the Circular for disputed ‘contracting-out’ cases.” 274 U. S. App. D. C. 135, 136, 862 F. 2d 880, 881 (1988). We follow the Court of Appeals’ interpretation of the proposed term.
The FLRA also held that although Circular A-76 was a “government-wide rule or regulation” within the meaning of § 7117(a), that section of the statute did not render the union’s proposal nonnegotiable because the proposal was “not inconsistent” with the Circular. 27 F. L. R. A., at 977. For reasons explained below in Part II-C, that issue is not properly before us.
A qualification to §7106 permits contract negotiations regarding “procedures which management officials of the agency will observe in exercising” the reserved management rights. 5 U. S. C. § 7106(b)(2). Although they call our attention to this qualification, NTEU and the FLRA rightly refrain from asserting that it governs this case. The proposal at issue would enable the grievance examiner to compel the IRS to follow the cost-comparison requirements of the OMB Circular, thereby dictating the substantive criteria for the contracting-out decision. See infra, at 931.
The relevant language of § 7121 is the following:
“(a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. . . .
“(2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement.
“(c) The preceding subsections of this section shall not apply wdth respect to any grievance concerning—
“(1) any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities);
“(2) retirement, life insurance, or health insurance;
“(3) a suspension or removal under section 7532 of this title;
“(4) any examination, certification, or appointment; or “(5) the classification of any position which does not result in the reduction in grade or pay of an employee.”
The FLRA’s position gets no support from § 7121(a)’s language providing that “Except as provided, in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances . . . .” (Emphasis added.) If that italicized language were construed to create the Act’s only exception to the requirements of § 7121(a), then even the specific exclusions in subsection (c) of the provision would disappear.
The IRS concedes this point. See Reply Brief for Petitioner 7; Tr. of Oral Arg. 14.
Justice Stevens contends that § 7117(a)(1) bars negotiation over the Union’s proposal for yet another reason, namely, that the proposal covers a matter that is “the subject” of a “‘Government-wide rule or regulation.’” Post, at 938 (dissenting opinion). This argument not only was not raised or considered below, but has not even been raised by the IRS here. We decline to address it.
See 27 F. L. R. A. 976, 979 (1987) (the Union proposal “require[s] nothing that is not required by section 7106(a)(2) of the Statute itself, namely, that determinations as to contracting-out must be made ‘in accordance with applicable laws’ ”).
1 am inclined to agree with the position taken by the Deputy Solicitor General at oral argument, see Tr. of Oral Arg. 14, that “applicable laws” include not only statutes but also regulations having the force of law, and that the Administrative Procedure Act (APA) provides the relevant measure. See id., at 47 (“[I]f a private party could bring an APA action, that would be very strong, if not conclusive, evidence that. . . you are dealing with an applicable law”). Under the APA, an agency action inconsistent with any valid and binding rule or regulation is actionable by anyone “aggrieved” by it. See 5 U. S. C. §§ 702, 706(2)(A); Center for Auto Safety v. Dole, 264 U. S. App. D. C. 219, 223, 235, 828 F. 2d 799, 803, 815 (1987); Padula v. Webster, 261 U. S. App. D. C. 365, 368, 822 F. 2d 97, 100 (1987).
1 do not agree with Justice Stevens that, even if OMB Circular A-76 is an applicable law, § 7117(a)(1) precludes bargaining over the Union
“[T]he duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation.”
I agree with Justice Stevens that the Circular is a Government-wide rule or regulation, but I do not read the provision to bar a union proposal that asks only that an existing rule or regulation be incorporated in its entirety into the union’s collective-bargaining agreement. The function of § 7117(a)(1) appears to be to insulate from the bargaining process union efforts to change anything that has already been settled by those with authority over the agency — e. g., Congress, the President, or OMB. The two clauses in § 7117(a)(1) explain that a union proposal in direct conflict with, or covering the same ground as, a Government-wide rule or regulation is not bargainable. They establish a kind of pre-emption by which agencies may not adopt rules where those with greater authority have adopted a contrary rule or occupied the field. Thus, no purpose is served by including the rule or regulation itself within “matters which are the subject of” any Government-wide rule or regulation. Incorporating a Government-wide rule into a collective-bargaining agreement does not place the agency at odds with any greater authority.
That the Authority found below that OMB Circular A-76 is a “law, rule, or regulation” under § 7103(a)(9)(C)(ii), see 27 F. L. R. A., at 978,
Dissenting Opinion
dissenting.
If OMB Circular A-76 (rev. Aug. 4, 1983) is not an “applicable law” within the meaning of 5 U. S. C. § 7106(a)(2), the plain language of that section requires an outright reversal of
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