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National Treasury Employees Union v. Federal Labor Relations Authority

United States Court of Appeals, District of Columbia Circuit

December 3, 2019

National Treasury Employees Union, Petitioner
v.
Federal Labor Relations Authority, Respondent United States Department of Homeland Security, Customs and Border Protection, Intervenor

          Argued September 23, 2019

          On 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.

          Noah 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, Attorney.

          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 Circuit Judge.

          OPINION

          EDWARDS, SENIOR CIRCUIT JUDGE.

         The 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.

         Agencies 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).

         Petitioner 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).

         The 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.

         I. Background

         A. Legal Framework

         As 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.

         As explained at the outset of this opinion, the Statute exempts certain "management rights" from the duty to bargain. See id. ยง 7106(a). Section 7106(a)(2) states, in relevant part, that "nothing in this chapter shall affect the authority of any management ...


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