United States Court of Appeals, District of Columbia Circuit
September 23, 2019
Petition for Review of a Decision and Order of the Federal
Labor Relations Authority.
Allison C. Giles argued the cause for petitioner. With her on
the briefs were Gregory O'Duden and Julie M. Wilson.
B. Peters, Solicitor, Federal Labor Relations Authority,
argued the cause for respondent. On the brief were Rebecca J.
Osborne, Acting Deputy Solicitor, and Tabitha G. Macko,
Melissa N. Patterson, Attorney, U.S. Department of Justice,
argued the cause for intervenor. On the brief were H. Thomas
Byron III and Tyce R. Walters, Attorneys.
Before: Millett and Rao, Circuit Judges, and Edwards, Senior
EDWARDS, SENIOR CIRCUIT JUDGE.
Federal Service Labor-Management Relations Statute (the
"Statute") generally governs collective bargaining
between certain federal agencies and labor organizations
representing agency employees. See 5 U.S.C.
§§ 7101-7135 (2018). In enacting the Statute,
Congress found that it was in the public interest to protect
the right of employees in the federal government "to
organize, bargain collectively, and participate through labor
organizations of their own choosing in decisions which affect
them[.]" Id. § 7101(a)(1). The Statute
provides that, inter alia, covered employees have a
right "to engage in collective bargaining with respect
to conditions of employment through representatives chosen by
employees[.]" Id. § 7102(2). Agency
officials are thus required to "meet and negotiate in
good faith" with their employees' exclusive
representative "for the purposes of arriving at a
collective bargaining agreement." Id. §
7114(a)(4). The required scope of bargaining under the
Statute is limited, however.
and employees' bargaining representatives have a
"duty to bargain in good faith" with respect to
conditions of employment that are subject to collective
bargaining under the Statute. Id. § 7117(a)(1).
Agency officials have no duty to bargain, however, over
certain management rights reserved to agencies by the
Statute. See id. § 7106(a). The dispute in this
case involves two such management rights - the right to
"direct employees" and the right to "assign
work." Id. § 7106(a)(2)(A)-(B).
National Treasury Employees Union ("Union") is the
bargaining representative for persons employed by the U.S.
Department of Homeland Security, Customs and Border
Protection ("Agency"). In negotiations over a new
collective bargaining agreement, the Union proposed that, in
appraising employee work performance, the Agency not use any
"performance appraisal rating levels above the
Successful rating level for purposes of the annual appraisal
process." Agency representatives declined to negotiate
over the matter. The Union then filed a negotiability
petition with the Federal Labor Relations Authority
("Authority" or "FLRA"), challenging the
Agency's refusal to bargain. The Authority denied the
Union's petition because, in its view, the number of
rating levels for both individual elements of the job and
overall performance are essential aspects of an agency's
rights to direct employees and assign work. Nat'l
Treasury Emps. Union, 70 F.L.R.A. 701 (2018).
Union now petitions this court to reverse the Authority's
decision and find that the disputed proposal falls within the
Agency's duty to bargain. Because we find that the
FLRA's decision is based on a permissible and reasonable
interpretation of the Statute and is consistent with
well-established precedent, we deny the petition for review.
noted above, the Statute governs collective bargaining
between certain federal agencies and their employees'
exclusive bargaining representatives. See 5 U.S.C.
§§ 7101-7135. Among other things, the Statute
requires agencies to bargain in good faith over various
conditions of employment. See id. § 7114(a)(4),
(b) (imposing and defining the duty to "meet and
negotiate in good faith"); id. § 7117
(defining further the "duty to bargain in good
faith"); id. § 7116(a)(5) (making an
agency's failure to do so an "unfair labor
practice"). But the duty to bargain does not extend to
all conditions of employment.
explained at the outset of this opinion, the Statute exempts
certain "management rights" from the duty to
bargain. See id. § 7106(a). Section 7106(a)(2)
states, in relevant part, that "nothing in this chapter
shall affect the authority of any management ...