54:0360(43)CA - - Commerce, Patent and Trademark Office & Patent Office Professional Association - - 1998 FLRAdec CA - - v54 p360



[ v54 p360 ]
54:0360(43)CA
The decision of the Authority follows:


54 FLRA No. 43

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

(Respondent)

and

PATENT OFFICE PROFESSIONAL ASSOCIATION

(Charging Party/Union)

WA-CA-40743

53 FLRA 858 (1997)

(Partial Decision and Procedural Order)

_____

FINAL DECISION AND ORDER

June 19, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)

I. Statement of the Case

This case is before the Authority on exceptions to an unfair labor practice complaint alleging that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (Statute) by implementing a decision to use term appointments to fill certain bargaining unit positions without first providing the Union with an opportunity to bargain over the decision to make the changes under section 7106(b)(1) of the Statute. Among other things, this case involves an allegation that Executive Order 12871 "requires the Respondent to bargain over the subjects set forth in section 7106(b)(1) of the Statute[,]" including its decision to use term appointments.(2) G.C. Exh. 1(b) at para. 12(a).

In U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 858 (1997) (Department of Commerce), the Authority issued a Partial Decision in this case, concluding that the Respondent violated the Statute by failing to bargain over the impact and implementation of its decision to use term appointments. The Authority also concluded that the Respondent's decision concerned a matter encompassed by section 7106(b)(1) of the Statute. However, the Authority determined that the evidence and arguments before it (hereinafter "the record") was insufficient to decide whether Executive Order 12871 required the Respondent to negotiate over its decision to use term appointments. The Authority issued a procedural order directing the parties in this case, those in four companion cases,(3) and those seeking to participate as amicus curiae,(4) to submit written responses to questions concerning this issue.(5)

For the reasons fully explained below, we reject the allegation that the Executive Order effects an election to bargain under section 7106(b)(1) of the Statute that is enforceable in this unfair labor practice proceeding. The fact that the command stated in Section 2(d) of the Executive Order is mandatory does not necessarily mean that it constitutes a statutory election. Translating the Executive Order's direction to negotiate over subjects set forth in section 7106(b)(1) into an election under that section improperly conflates two distinct concepts: the Executive Order can be mandatory in nature without, at the same time, effecting an election enforceable by the Authority and the Federal courts. Finding that Section 2(d) of the Executive Order constitutes a statutory election is at odds with its terms, its context, and the express limitation in another provision -- Section 3 -- of the Executive Order itself. The conclusion that our interpretation of Section 2(d) is compelled by Section 3 does not mean that the Executive Order deprives the Authority of jurisdiction over this or any other unfair labor practice complaint. It simply recognizes that the unambiguous limitation in Section 3 cannot be ignored in determining the Executive Order's meaning.

Accordingly, we dismiss the portion of the complaint alleging that the Respondent violated the Statute by failing to bargain over the substance of its decision to use term appointments. However, consistent with the ruling in the Partial Decision that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain over the impact and implementation of this decision, we issue the Order and Notice attached to this decision. In addition, we affirm the Authority's previous determination that the Respondent's decision was encompassed by section 7106(b)(1) of the Statute and that section 7106(b)(1) constitutes an exception to section 7106(a).

II. Background

A. Facts and Judge's Decision

The facts pertaining to this case are set forth in Department of Commerce and the Judge's decision attached thereto, and are only briefly summarized here.

The Respondent provided the Union copies of position descriptions for certain new, permanent, patent examiner positions that previously had been discussed with the Union. After receiving a vacancy announcement describing the positions as 2-year term appointments, the Union inquired whether the Respondent was establishing a new "program." The Union also made a second inquiry concerning the discrepancy between permanent appointments and term appointments, and requested to bargain over the "negotiable aspects" of the program. Judge's Decision at 5. The Respondent failed to reply to the Union's inquiries. After the new examiners reported for work, the Union learned that the vacancy announcement had correctly described the new positions as 2-year term appointments.

The Union filed an unfair labor practice charge. The General Counsel issued a complaint alleging that the Respondent violated the Statute by implementing its decision to use term appointments without first providing the Union with an opportunity to bargain.

The Judge concluded that the Respondent's decision to use the 2-year term appointments constituted a change in conditions of employment of unit employees. However, the Judge determined that the Respondent was not obligated to bargain over its decision because the right to hire is a management right encompassed by section 7106(a) of the Statute. Id. at 11. Even assuming that the Respondent's decision concerned a matter encompassed by section 7106(b)(1) of the Statute, the Judge found that the Respondent did not elect to bargain under that section. Moreover, the Judge also found that the President did not exercise the Respondent's discretion under section 7106(b)(1) of the Statute in Executive Order 12871. Accordingly, the Judge decided that the Respondent was obligated to bargain over only the impact and implementation of its decision to use term appointments.

Having found that the Respondent violated section 7116(a)(1) and (5) of the Statute, the Judge recommended a cease and desist order and a notice posting. The Judge also recommended a retroactive bargaining order and make-whole relief for any unit employees who suffered losses due to the Respondent's failure to bargain.

B. The Authority's Partial Decision in 53 FLRA 858

In Department of Commerce, 53 FLRA 858, the Authority issued a Partial Decision, addressing, in part, the parties' exceptions to the Judge's decision. With respect to the remaining issues, the Authority found the record insufficient to resolve the exceptions and directed the parties, parties in four companion cases, and other parties seeking to participate as amicus curiae, to provide written responses to a series of questions concerning section 7106(b)(1) of the Statute and Executive Order 12871. See supra notes 3-5.

In its Partial Decision, the Authority concluded, in agreement with the Judge, that the Respondent violated the Statute by failing to provide the Union with notice of, and an opportunity to request bargaining about the impact and implementation of, its decision to use term appointments in the bargaining unit. Applying Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986), the Authority rejected the Respondent's contention that its decision did not concern conditions of employment in the bargaining unit because the matter affected only applicants for employment, rather than unit employees. The Authority also rejected the Respondent's contention that its decision to use term appointments did not change conditions of employment in the bargaining unit. Thus, the Authority stated "whether or not the Respondent's decision constituted an exercise of a right under section 7106(a) . . . or under section 7106(b)(1)," the Respondent's failure to notify the Union of its decision to use term appointments prior to hiring the new examiners violated section 7116(a)(1) and (5) of the Statute. Department of Commerce, 53 FLRA at 868-69.

The Authority also concluded that the Judge's determination that the decision to use term appointments constituted an exercise of management's rights under section 7106(a) of the Statute was "not dispositive" because "the Judge did not determine whether the Respondent's decision concerned a matter encompassed by section 7106(b)(1)." Id. at 869. The Authority noted that, in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington), it expressly found that "temporary employees constitute a type [of employee] within the meaning of section 7106(b)(1)" of the Statute. Department of Commerce, 53 FLRA at 869 (quoting National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1034 (1997)). The Authority also noted that, in Overseas Education Association and U.S. Department of Defense, Office of Dependents Schools, 45 FLRA 1185 (1992) (OEA), it concluded that proposals requiring an "agency to convert to permanent status certain employees hired under temporary appointments . . . affect management's right to determine the numbers, types, and grades of employees or positions" under section 7106(b)(1) of the Statute. Department of Commerce, 53 FLRA at 870 (quoting OEA, 45 FLRA at 1198). Based on this Authority precedent, the Authority determined that the Respondent presented "no grounds for concluding that its decision to use term appointments was not a matter subject to section 7106(b)(1)." Id. Accordingly, the Authority decided that the Respondent's decision to hire new examiners under term appointments was encompassed by section 7106(b)(1) of the Statute.

Finally, the Authority found that "[t]he parties vigorously dispute whether the President, by virtue of issuing Executive Order 12871, has exercised the Respondent's discretion to bargain over the decision to use term appointments." Id. at 870. However, the Authority concluded that the record was insufficient to resolve this question and certain related questions. Therefore, the Authority issued a procedural order directing the parties in this case and those in the four companion cases to submit written responses to the questions. Those seeking to participate as amicus curiae also were invited to submit responses to the questions.

III. Positions of the Parties

The positions of the parties, submitted in response to the Authority's Partial Decision in Department of Commerce, those in four companion cases, and those seeking to participate as amicus curiae, are as follows. The parties' prior arguments are set forth in the Partial Decision, 53 FLRA at 863-67.

A. General Counsel

The General Counsel maintains that the President has the authority to make an election to bargain on behalf of agencies under section 7106(b)(1) of the Statute, and that Section 2(d) of Executive Order 12871 is such an election. According to the General Counsel, "[t]he President, in essence, made a 'choice' for agencies covered by the Statute that they would bargain over section 7106(b)(1) matters." General Counsel's Brief at 16. The General Counsel argues that Guidance issued by the Office of Personnel Management (OPM) following discussions with the National Partnership Council establishes that "agencies are mandated to bargain over section 7106(b)(1) matters, and if required, to bargain to impasse and go before [the Federal Service Impasses Panel (the Panel)]."(6) Id. at 19. The General Counsel requests if the Authority is not persuaded that the Executive Order is an election under section 7106(b)(1) of the Statute, that the Authority seek an advisory opinion from OPM before rendering its decision.

The General Counsel states that this case concerns the enforcement of statutory rights after an election has been made and not withdrawn. In this regard, the General Counsel maintains that an election under section 7106(b)(1) is valid unless withdrawn prior to reaching agreement. The General Counsel argues that the Respondent has not claimed in its defense that the President's election under section 7106(b)(1) has been either revoked or withdrawn.

Finally, the General Counsel argues that the case concerns only the Respondent's refusal to fulfill a statutory bargaining obligation prior to effectuating a change in conditions of employment, not a failure to comply with the Executive Order. Thus, the General Counsel asserts that Section 3 of the Executive Order does not deprive the President's election of its effect under the Statute. The General Counsel states that the appropriate remedy is to issue a bargaining order directing the Respondent to bargain with respect to the 7106(b)(1) subjects until an agreement is reached or the election is properly revoked.

B. Charging Party

The Charging Party argues that "[t]he right for this review before the Authority comes from [the Statute], rather than via the Executive Order." Charging Party's Brief at 1. According to the Charging Party, section 2(d) of the Executive Order removes the Respondent's discretion not to negotiate subjects set forth in section 7106(b)(1) of the Statute. The Charging Party emphasizes that the word "shall" in the Executive Order establishes that the subjects set forth in section 7106(b)(1) of the Statute are mandatory, not permissive, subjects of bargaining.

In the alternative, the Charging Party contends that the Executive Order "creates [a] legal presumption that an agency will negotiate" over section 7106(b)(1) subjects. Id. at 2. The Charging Party argues that, in order to rebut this presumption, the Respondent must demonstrate that an agency official has declined to make the election specified in the Executive Order. The Charging Party maintains that no such demonstration has been made in this case.

C. Respondent

The Respondent disagrees with the Authority's conclusion that its decision to use term appointments concerns a permissive subject of bargaining under section 7106(b)(1) of the Statute. The Respondent maintains that its decision is solely a matter within an agency's discretion under section 7106(a) of the Statute. According to the Respondent, VAMC, Lexington was wrongly decided:

[Section 7106(b)(1) of the Statute] is neither a "limitation nor a clarification" of the management rights enumerated in section 7106(a), which are prohibited from bargaining. Rather, (b)(1) is a separate category of management rights which may be bargained permissively.

Respondent's Brief at 23. The Respondent asserts that, based on this reasoning, it "never reached the issue of whether term appointments constituted a matter encompassed by section 7106(b)(1)." Id. at 8. The Respondent states that "nothing in the Executive Order diminishes management's rights concerning the subjects of section 7106(b)(1) of the Statute . . . and that, because the Executive Order . . . does not create any right to administrative or judicial review," the Authority may not order the Respondent to bargain over the permissive rights enumerated in section 7106(b)(1) of the Statute. Id. at 2.

D. Companion Cases (7)

1. Charging Parties (8)

The Charging Parties generally assert that the President has the constitutional authority to direct Executive Branch officials to elect to bargain over section 7106(b)(1) matters. In particular, it is argued that, if lower level agency officials at the level of exclusive recognition can make an irrevocable election to bargain by agreement, then it follows that the President, as head of the Executive Branch, may also elect to bargain. See NAGE Brief at 6. The Charging Parties maintain that once the President makes this election, the agencies are bound to bargain in good faith and are without legal authority to revoke the election.

The Charging Parties assert that it is the Statute and not the Executive Order under which enforcement is sought, and, therefore, the rule against enforcement of Executive Orders does not apply. The Charging Parties claim that section 3 of the Executive Order cannot infringe upon the statutory right of the Authority to review unfair labor practices decisions.

2. Respondents (9)

Consistent with the Respondent's argument here, several of the Respondents in the companion cases argue that VAMC, Lexington was wrongly decided. In particular, the Respondents assert that matters encompassed by section 7106(b)(1) are not bargainable at an agency's election in situations where the matters are also encompassed by section 7106(a) rights.

The Respondents contend that it is the agency, at the level of exclusive recognition -- not the President -- that has the right under the Statute to elect to bargain over matters encompassed by section 7106(b)(1). The Respondents claim that if the parties agree to negotiate over 7106(b)(1) matters, then an election has been made. Conversely, the Respondents claim that if the agency asserts that a matter is not encompassed by section 7106(b)(1) or does not choose to bargain over a matter that is encompassed by that section, then it is clear that no election to bargain has been made. The Respondents maintain that an agency may revoke an election to bargain at any time prior to reaching an agreement.

The Respondents generally assert that Section 2(d) of Executive Order 12871 constitutes a direction to agency officials to bargain, rather than an election under the Statute to bargain. Because Section 3 of the Executive Order expressly bars administrative and judicial review, the Respondents claim that the Executive Order is solely an internal management tool. Accordingly, the Respondents maintain that Section 3 of Executive Order 12871 bars the Authority from finding an unfair labor practice based on the President's election to bargain and the agency's subsequent refusal to bargain.

E. Amicus Curiae Briefs

1. Briefs Supporting Assertion that the Respondent's Refusal to Bargain over the Decision to Use Term Appointments Violated the Statute (10)

Several amici maintain that, through Executive Order 12871, the President has made an election to bargain over the permissive subjects encompassed by section 7106(b)(1) of the Statute. They argue that the Executive Order creates an enforceable obligation to bargain in good faith unless the election is withdrawn or revoked by the President. They claim that this election is enforceable notwithstanding the language in Section 3 of the Executive Order. These amici argue that to read Section 3 of Executive Order 12871 otherwise would render the Executive Order null and void. In this regard, they maintain that the President did not intend to make an election to bargain while at the same time claim that this election had no binding effect. Generally, these amici argue that it would be appropriate for the Authority to find a violation of the Statute and, to remedy such a violation, the Authority should issue a retroactive bargaining order and/or order a return to the status quo.

2. Briefs Supporting Assertion that the Respondent's Refusal to Bargain over the Decision to Use Term Appointments did not Violate the Statute (11)

These amici generally assert that the Executive Order is a direction to bargain over 7106(b)(1) subjects but does not constitute an election to bargain under the Statute. They also assert that Executive Order 12871 was intended only to improve the internal management of the Executive Branch, and not to create rights enforceable by the Authority. Because the Executive Order expressly prohibits both administrative and judicial review of any matter encompassed by the Order, these amici maintain that enforcement of the Executive Order is left to the Executive Branch.

IV. Analysis and Conclusions

In an unfair labor practice proceeding, it is axiomatic that the General Counsel bears the burden of establishing each and every element of the alleged unfair labor practice in order to establish a violation of the Statute. See 5 C.F.R. § 2423.32.(12) We have already determined that the Respondent violated the Statute by failing to bargain over the impact and implementation of its decision to use term appointments. Department of Commerce, 53 FLRA at 867-69. The allegation remaining to be resolved is that the Respondent also violated the Statute by failing to bargain over the substance of the decision.

Our careful consideration of the arguments presented by the General Counsel, the Respondent, the Charging Party, parties in the companion cases, and amici, makes evident that it is possible to begin our analysis of the elements necessary to establish this violation at any one of a number of points.(13) The Respondent's implementation without bargaining over the substance of the decision is not controverted. The allegation that, by doing so, the Respondent committed an unfair labor practice rests on threshold claims that: (1) the subject matter of the decision is encompassed by section 7106(b)(1) of the Statute; and (2) Section 2(d) of Executive Order 12871 is properly construed to effect the Respondent's election under the Statute to bargain over these subjects.

The Respondent does not assert, as a defense, that if the Executive Order constitutes an election under the Statute, then such election had been revoked or withdrawn at the time the Respondent refused to bargain over its decision. This leaves as the remaining issues that would need to be determined, if an election to bargain over a subject encompassed by section 7106(b)(1) had been made: (3) whether any requirements applicable to bargaining during the period the election was in effect were satisfied; and (4) if applicable requirements were not satisfied, then whether the Authority should find that the Respondent violated the Statute and what remedy should be ordered.

For the reasons explained below, we affirm the Authority's determination in Department of Commerce, 53 FLRA at 869-70, that the Respondent's decision to use term appointments to hire certain patent examiners is encompassed by section 7106(b)(1) of the Statute. We also conclude that the Authority did not err by applying VAMC, Lexington, in making that determination. See infra Section IV.A.

With respect to whether Executive Order 12871 is properly construed to effect the Respondent's election under section 7106(b)(1) of the Statute, we conclude that the direction to negotiate in Section 2(d) does not constitute such an election and, therefore, is not enforceable in this unfair labor practice proceeding. First, this conclusion comports with the actual wording of Section 2(d), which is the sole source relied on to effect the asserted election. Neither the fact that the command in Section 2(d) is mandatory, nor that it anticipates that agencies will make a statutory election, necessarily means that Section 2(d) itself constitutes such an election enforceable in unfair labor practice proceedings. See infra Section IV.B.1. Second, this conclusion is consistent both with the context in which Section 2(d) appears, and with the purpose of the Executive Order as a whole. See infra Section IV.B.2. Third, this conclusion is compelled by Section 3 of the Executive Order, not because that section deprives the Authority of its statutory responsibility to remedy unfair labor practices, but because, consistent with Section 3, Section 2(d) simply cannot be interpreted beyond its plain terms and context to effect a statutory election. See infra Section IV.B.3. Fourth, the OPM Guidance relied on to establish the asserted election does not, in our view, support an interpretation of Section 2(d) that is at odds with its terms, context, and the unambiguous limitation expressed in Section 3. See infra Section IV.B.4. Finally, it is neither necessary nor proper to find that Section 2(d) of the Executive Order constitutes an election under the Statute based on concerns that the command to negotiate in Section 2(d) is "meaningful" only if it is enforceable, as such an election, by the Authority and the judiciary. See infra Section IV.B.5.

A. The subject matter about which the Union seeks to bargain is encompassed by section 7106(b)(1) of the Statute, which is an exception to section 7106(a).

The Authority previously determined that the matter about which the Union sought to bargain in this case -- the decision to use term appointments to hire certain patent examiners -- is encompassed by section 7106(b)(1) of the Statute. See Department of Commerce, 53 FLRA at 869-70. We affirm that determination here, for the reasons stated previously. We note, in this regard, that the Authority's conclusion that the decision to use term appointments constituted the exercise of the right to determine the numbers, types, and grades of employees, within the meaning of section 7106(b)(1), is not challenged.(14) However, the Respondent challenges the Authority's central holding in VAMC, Lexington that section 7106(b)(1) is an exception to section 7106(a).

The Respondent specifically argues that this holding should be reconsidered. According to the Respondent, if a matter affects a management right under section 7106(a) of the Statute, then the matter is outside the duty to bargain without regard to whether it also is encompassed by section 7106(b)(1).(15) The Respondents in the companion cases also challenge the Authority's conclusion, in VAMC, Lexington, that section 7106(b)(1) constitutes an exception to management's rights under section 7106(a). See Department of Justice Brief at 7 n.8 ("Authority erred by holding that a union proposal which would require an agency to hire certain types of employees is within the scope of section 7106(b)(1) and does not interfere with management's rights under section 7106(a)(2)(A)."). In addition, it is asserted that the Authority erred in applying Section 7106(b) in the circumstances presented both in VAMC Lexington and here. See Department of Veterans Affairs Brief at 3-4 (arguing that the court's holding in Association of Civilian Technicians, Montana Air Chapter, No. 29 v. FLRA, 22 F.3d 1150 (D.C. Cir. 1994) (Montana ACT), that section 7106(b)(1) is an exception to section 7106(a), should be limited to situations where an election to bargain under section 7106(b)(1) has resulted in an agreement).

For reasons fully set forth in VAMC, Lexington, 51 FLRA at 393, section 7106(b)(1) is an exception to section 7106(a) such that bargaining over matters encompassed by section 7106(b)(1) is permitted notwithstanding that such matters also affect rights under section 7106(a). This interpretation is consistent with relevant judicial precedent. See Montana ACT, 22 F.3d at 1155 ("§ 7106(b) is indisputably an exception to § 7106(a)"). Moreover, it is compelled by the plain wording of the Statute, which expressly makes section 7106(a) "subject to" section 7106(b) and provides that "nothing in" section 7106 prevents an agency from electing to bargain over matters encompassed by section 7106(b).

Although the Respondent maintains that the Authority's examination of statutory wording in VAMC, Lexington, was "extremely selective," it points to no additional statutory wording that would lead to a different interpretation. Respondent's Brief at 22. In this regard, the Respondent notes correctly that section 7106(b)(2) and (3) expressly refer to rights under section 7106(a). However, although that fact supports a conclusion that the three subsections of section 7106(b) differ in some respects, it does not negate the conclusion that section 7106(b)(1) is an exception to section 7106(a). In addition, we reject the Respondent's assertion that the rights set forth in section 7106(b)(1) encompass only rights that are separate from -- and not implicating -- those set forth in section 7106(a). See Montana ACT, 22 F.3d at 1154-55 (right to determine the methods and means of performing work under section 7106(b)(1) held to constitute an exception to the right to determine internal security practices under section 7106(a)). That section 7106(b)(1) might encompass matters not implicating section 7106(a) does not mean that matters encompassed by section 7106(b)(1) never implicate section 7106(a).

Finally, nothing in the wording of the Statute, or in Montana ACT, persuades us that, as argued by the Department of Veterans Affairs, the approach set forth in VAMC, Lexington should be applied only when the parties have reached agreement on a section 7106(b)(1) subject. As set forth supra note 15, it is well-established that after parties have reached agreement on a provision encompassing a section 7106(b)(1) matter, the provision may not be disapproved during agency head review under section 7114(c) of the Statute because such provisions are not contrary to law. See Blue Ridge Parkway, 24 FLRA at 62. However, neither the conclusion in VAMC, Lexington that section 7106(b)(1) is an exception to section 7106(a), nor the statutory wording set forth above on which that conclusion is based, references or depends on finding that an agreement has been reached. Put simply, we find no support for the proposition that section 7106(b)(1) operates as any less of an exception prior to an agreement than after.

In view of the foregoing, we are not persuaded that the Authority erred in Department of Commerce when it applied VAMC, Lexington to conclude that the Respondent's decision to use term appointments to fill certain bargaining unit positions was encompassed by section 7106(b)(1), and that section 7106(b)(1) constitutes an exception to 7106(a).

B. Section 2(d) of the Executive Order does not constitute an election to bargain under the Statute.

As to the second element of the alleged unfair labor practice -- whether an effective election to bargain was made -- the General Counsel relies on Executive Order 12871 as the source of the asserted election. See General Counsel's Brief at 7. Indeed, the one point on which all of the parties agree is that the sole source of the asserted election to bargain is the Executive Order, specifically Section 2(d) of the Executive Order. See, e.g., Charging Party's Brief at 6 ("Section 2(d) of the Executive Order simply removes the agency option to not negotiate."); Respondent's Brief at 29 ("Section 2(d) . . . does not constitute an [a]gency election, within the meaning of section 7106(b)(1) of the Statute[.]"). Accordingly, the text of Section 2(d) is the appropriate place to begin our examination of this issue.

1. Section 2(d) of the Executive Order directs agency heads to bargain "over the subjects set forth in 5 U.S.C. 7106(b)(1)."

Section 2(d) is one of five subsections describing actions that the "head of each agency" subject to the provisions of the Statute "shall" take. The specific actions described in subsection (d) are to "negotiate over the subjects set forth in 5 U.S.C. § 7106(b)(1), and instruct subordinate officials to do the same."

The term "shall" makes this direction to agency heads mandatory in nature. See Black's Law Dictionary 1375 (6th ed. 1990) ("As used in statutes, contracts, or the like, [the word shall] is generally imperative or mandatory."); Webster's Third New International Dictionary 2085 (1986) (def.2A and B) (stating that the word "shall" is "used to express a command or exhortation" and "used in laws, regulations, or directives to express what is mandatory"). The particular actions mandated are to "negotiate" and "instruct subordinate officials to do the same." The reference in Section 2(d) to "5 U.S.C. Section 7106(b)(1)" explicitly serves to define the "subjects" over which such negotiation is mandated.

Nothing in these precise words(16), or elsewhere in the Executive Order, expressly states that the President is making an "election under the Statute." However, the General Counsel asserts that the Authority should nevertheless construe Section 2(d) in a manner that translates the verb "shall" into such an election, making the direction to agencies enforceable not only by the President as chief executive, but also by a prosecutor through adjudicatory proceedings before the Authority, appealable to and ultimately enforceable by the Federal courts. See 5 U.S.C. § 7123(a) (with exceptions not relevant here, any person aggrieved by a final order of the Authority may institute action for judicial review). In effect, the General Counsel's asserted construction would transform the President's order to agency heads into an election that, if not followed, would violate the Statute. Thus, the General Counsel's claim is, at its essence, that the words in Section 2(d) have a meaning beyond their plain terms.

The contrary view advanced by the Respondent limits the meaning of Section 2(d) to its precise words -- an instruction to agency heads to bargain. Respondent's Brief at 34. We assume, in this regard, that implementation of the President's direction in Section 2(d) would result in an election under the Statute. Thus, by instructing agency heads and subordinates to bargain over 5 U.S.C. § 7106(b)(1) subjects, Section 2(d) clearly anticipates that agency heads and subordinates will elect to bargain.(17) However, directing another to undertake an act is not necessarily the same as undertaking the act oneself. Cf. Chen v. Carroll, 866 F. Supp. 283, 287 (E.D. Va. 1994) (Executive Order directive to Attorney General did not have force and effect of law and was not binding on Board of Immigration Appeals because directive to "provide for enhanced consideration" under immigration laws of certain individuals "was not itself a requirement that such enhanced consideration be given.").

Neither the fact that the command in Section 2(d) is mandatory, nor that it anticipates that agencies will make a statutory election, necessarily means that Section 2(d) itself constitutes such an election enforceable in unfair labor practice proceedings. In this regard, the arguments asserted to support construing Section 2(d) as a Statutory election and the view adopted by our dissenting colleague, appear to equate the fact that the section states a mandate with the conclusion that it constitutes an election under the Statute. However, there is, in our view, a critical distinction between these two concepts, and it is erroneous to conflate them. Not every order from a superior to a subordinate amounts to a requirement that is enforceable by administrative agencies and/or the courts. Section 2(d) can be mandatory in nature without constituting a Statutory election that is enforceable in unfair labor practice proceedings.(18)

2. The purpose of the Executive Order is to establish a new form of labor-management relations throughout the Executive Branch.

To determine whether Section 2(d) should be construed in accordance with its terms, or translated into a statutory election, it is appropriate to examine this provision in the context in which it appears. See John Hancock Mutual Life Insurance Co. v. Harris Trust & Savings Bank, 510 U.S. 86, 94-95 (1993) (When "examin[ing] first the language of the governing statute," the Court is "guided not by 'a single sentence or member of a sentence, but look[s] to the provisions of the whole law, and to its object and policy.'") (citation omitted). See also Bailey v. U.S., 516 U.S. 137, 145 (1995) ("[T]he meaning of statutory language, plain or not, depends on context.") (citation omitted). It is a longstanding principle of statutory construction that "each part or section" of a statute "should be construed in connection with every other part or section so as to produce a harmonious whole." 2A Norman J. Singer, Sutherland Statutory Construction § 46.05 (5th ed. 1992) (hereinafter Sutherland). See also U.S. National Bank of Oregon v. Independent Insurance Agents, 508 U.S. 439, 455 (1993) ("statutory construction 'is a holistic endeavor,' and, at a minimum, must account for a statute's full text, language, as well as punctuation, structure, and subject matter."). No basis is argued or apparent that the basic principles of statutory construction should not be applied in examining the meaning of Executive Order 12871. See Sutherland § 31.06 (5th ed. Supp. 1998) ("The same rules of construction that are used for statutes and administrative regulations are used to interpret an executive order."). Applying these principles, therefore, we examine the Executive Order as a whole to determine whether it sheds any light on how Section 2(d) should be construed.

The express purpose of the Executive Order is to facilitate the formation of labor-management partnerships in order to implement the Government reform objectives of the National Performance Review. Specifically, the Preamble to the Order states that its purpose is "to establish a new form of labor-management relations throughout the Executive Branch . . . ." Executive Order 12871, Preamble. Labor-management partnerships are not defined in the Executive Order. However, the Preamble makes clear that partnerships are intended to "chang[e] the nature of Federal labor-management relations so that managers, employees, and employees' elected union representatives serve as partners . . . to design and implement comprehensive changes necessary to reform Government." Id.

That the focus of the Executive Order is on the creation of labor-management partnerships is confirmed by Sections 1 and 2 of the Order. Section 1 establishes the National Partnership Council, which is charged with, among other things, "supporting the creation of labor-management partnerships and promoting partnership efforts[.]" In Section 2, the Order describes, as explained above, the specific actions that agency heads are directed to take. These actions, according to the title of the Section, effectuate "Implementation of Labor-Management Partnerships Throughout the Executive Branch[.]" In addition to the command in Section 2(d) to negotiate over subjects in 5 U.S.C. § 7106(b)(1), Section 2 describes the following four actions that agency heads "shall" take: (1) creation of labor-management partnerships, (2) involvement of employees and unions in identifying problems and crafting solutions; (3) provision of training in alternative dispute resolution; and (4) evaluation of performance improvements resulting from partnerships.

The directions in Section 2 are not inconsistent with the Statute. Indeed, achieving "consensual methods of dispute resolution" is in full accord with Congressional findings underlying the Statute. See 5 U.S.C. § 7101(a)(1)(C) (statutory protection of right to organize and bargain collectively "facilitates and encourages the amicable settlements of disputes"). However, the creation of labor-management partnerships, and each of the other four actions directed in Section 2 of the Executive Order, are indisputably outside the framework of legal rights and obligations defined in the Statute. Therefore, the context in which the command in Section 2(d) appears does not indicate that it is intended to effect an action under the Statute.

3. The Executive Order is expressly intended only to improve management of the Executive branch of Government.

Any uncertainty about whether Section 2(d) of the Executive Order is properly construed as taking an action that triggers the enforcement mechanisms in the Statute is resolved, in our view, by the unambiguous terms of Section 3. This section states clearly that the Executive Order is "intended only to improve the internal management of the executive branch." Executive Order 12871, Section 3 (emphasis added). Dispelling any doubt, this exclusive intent is underscored by the further statement in Section 3 that the Executive Order is "not intended to, and does not, create any right" to "administrative or judicial review, or any other right enforceable by a party . . . ." Id. (emphasis added).

As asserted by the General Counsel, construing Section 2(d) as an election would lead to its enforcement by the Authority, an administrative agency, and subject it to judicial review under section 7123 of the Statute. The General Counsel, and other parties, attempt to circumvent any conflict between this construction of Section 2(d) and the clear wording of Section 3 by emphasizing that this proceeding enforces a statutory right, and not the Executive Order itself.(19) However, as we explained in Department of Commerce, "this distinction appears to address the threshold question whether the Authority has jurisdiction to determine the unfair labor practice allegation." 53 FLRA at 876. As we also pointed out, "[t]he fact that the Authority properly asserts jurisdiction . . . does not . . . necessarily render irrelevant the wording in Section 3 . . . ." Id.

We agree with the General Counsel that Section 3 would not deprive an election under section 7106(b)(1) of its effect under the Statute, or deprive the Authority of jurisdiction over this claim. However, we are not persuaded that it is irrelevant in construing the meaning of the Executive Order. Despite the volume of arguments advanced by the General Counsel and others to support construing Section 3 as not precluding our jurisdiction over this unfair labor practice claim, no basis has been asserted to reconcile the clear wording in Section 3 with the proposed interpretation of Section 2(d) as effecting an action that itself is reviewable and enforceable, both administratively and judicially.

In this regard, as we have previously described, the parties disagree whether the command in Section 2(d) should be construed as an internal management direction, or as an election under the Statute subject to enforcement in unfair labor practice proceedings. The former construction accords meaning to the clear expression of intent in Section 3. The latter construction ignores Section 3 entirely and, indeed, renders it nugatory with respect to Section 2(d). As such, this construction should be avoided.(20) See South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 (1985) ("It is an 'elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.'") (citations omitted).

In short, it would be contrary to the clear wording in Section 3 -- and its use of the unambiguous term "only" -- to find that Section 2(d) constitutes an election under the Statute that is enforceable by the Authority and the courts. Section 3 compels the conclusion that, consistent with its plain wording, Section 2(d) cannot be construed as an election that is reviewable and enforceable under the Statute.

4. The OPM Guidance does not establish that Section 2(d) constitutes an election under the Statute.

The Guidance issued by OPM on December 16, 1993 (Guidance) is the only source outside the wording of the Executive Order itself relied on by the General Counsel to support the asserted construction of Section 2(d) of the Executive Order as constituting an election under the Statute.(21) There is no basis in the record to view OPM's issuance as evidencing the President's intent in the Executive Order. Accordingly, we do not rely on the Guidance as one would rely on legislative history or on the interpretation issued by an entity pursuant to delegated responsibility.(22) We note that the Guidance was issued over 2 months after the Executive Order, and that the authority delegated to OPM in Section 1 does not expressly extend to interpreting the terms of the Executive Order itself. Thus, we question the probative value of the Guidance in determining the meaning of Section 2(d).(23) Cf. Sutherland § 48.03 ("Subsequent legislative history can be given little weight"; "It is generally held that later observations by those involved in the legislation's creation are not considered when referring to legislative history").

However, even if we were to view the Guidance as reliable evidence of the President's intent, we are not persuaded that it establishes that Section 2(d) constitutes an election.(24) The General Counsel relies on two statements in the Guidance. First, the General Counsel points to the statement that "bargaining over the subjects set forth in 5 U.S.C. § 7106(b)(1) is now mandatory[.]" Guidance, Section 4. Second, the General Counsel relies on the statement that, in the event that parties are unable to agree on section 7106(b)(1) matters, either party may present the impasse to the Federal Service Impasses Panel (Panel) or an interest arbitrator for resolution. Id.

Neither of these statements establish that Section 2(d) of the Executive Order should be construed, contrary to its text and context and the unambiguous limitation in Section 3, to constitute an election under the Statute. Neither statement refers to an "election," and neither refers to action taken by the President on behalf of agency managers. Moreover, both of the statements relied on by the General Counsel are at least as consistent with finding that the Executive Order is an internal management instruction to agency heads, as they are with finding that it effects an election under the Statute that is enforceable in unfair labor practice proceedings.

With respect to the first statement: describing bargaining over the subjects set forth in section 7106(b)(1) as "mandatory" is entirely consistent with construing Section 2(d) as a direction that the subjects be bargained. In addition, the complete sentence in the Guidance in which the "mandatory" term appears states:

Under Executive Order 12871, bargaining over the subjects set forth in 5 U.S.C. º7106(b)(1), is now mandatory, and a failure by agency managers to engage in such bargaining would be inconsistent with the President's directive.

OPM Guidance, Section 4 (emphasis added). This sentence, read in its entirety, indicates that when OPM issued the Guidance, it viewed a failure to engage in the bargaining required in Section 2(d) as a violation of the President's directive itself. This does not provide evidence of OPM's belief that a failure to bargain would violate the Statute.

With respect to the statement in the Guidance that either party may refer impasses to the Panel, the General Counsel notes that it is an unfair labor practice to insist to impasse on a permissive subject of bargaining, and asserts that:

Since the Director of OPM would not advise unions to commit unfair labor practices, it must be concluded that OPM, like the General Counsel, interprets the Executive Order as an election to bargain section 7106(b)(1) subjects.

General Counsel's Brief at 18. However, we do not understand how the statement in the Guidance can be construed as advice to unions at all, let alone advice to commit unfair labor practices. In this connection, the General Counsel does not argue, and no party or amicus brief before us asserts, that OPM has authority to direct union activity. In addition, no precedent is cited for the implicit premise that an agency could not agree to submit impasses resulting from bargaining over section 7106(b)(1) subjects to the Panel -- or at least not contest such submission. Viewed in this light, the reference in the OPM Guidance to Panel resolution of impasses directs that agencies bargain over 7106(b)(1) subjects to conclusion. Further, that agencies are directed to participate in impasse proceedings over permissive subjects of bargaining does not mean that the agencies are directed to insist that unions participate in such proceedings.

Finally, we note that there are other statements in the Guidance indicating that OPM does not view the Executive Order as taking an action that is enforceable in unfair labor practice proceedings. For example, the Guidance states that the bargaining over "section 7106(b)(1) subjects will use "interest-based bargaining." To the extent that this statement prescribes how the mandated bargaining is to be conducted, it extends beyond the Statute, which does not prescribe a method of bargaining. In addition, the Guidance states that "all proposals should be evaluated against agreed-upon criteria," and that the "primary criterion should be":

to make Government capable of delivering the highest quality services to the American people. This covers such matters as achieving service to the public equal to the "best in the business," improving productivity, streamlining operations and reducing overcontrol and micromanagement.

Id. Although Congress legislated that the provisions of the Statute should be interpreted "in a manner consistent with the requirement of an effective and efficient Government[,]" 5 U.S.C. § 7101(b), the criterion established in the Guidance goes beyond the requirements in the Statute.

5. Statutory enforcement of an election is not necessary to render the Executive Order "meaningful."

A final argument asserted as support for finding that Section 2(d) of the Executive Order effected an election to bargain that is enforceable under the Statute is that to find otherwise renders the Executive Order "meaningless." General Counsel's Brief at 24 n.47. We question the underlying premise that a President's directive to his agency heads in general, or the direction in Section 2(d) in particular, can only be meaningful if it can be enforced in administrative and judicial proceedings.

The Respondent in this case concedes, in this regard, that if it had "recognized that [the decision to use term appointments] was a section 7106(b)(1) issue, it would have followed the Executive Order as it has done in the past." Respondent's Brief at 30 (emphasis added). In addition, Federal managers and unions responding to surveys conducted by the National Partnership Council (NPC) reported both in 1995 and 1996 that labor-management partnerships are "handling issues that have been considered non-negotiable in the past." National Partnership Council, A Report to the President on Progress in Labor-Management Partnerships 31 (October 1996) (NPC 1996 Report). See also National Partnership Council, A Report to the President on Progress in Labor-Management Partnerships 12 (September 1995 (NPC 1995 Report).(25) More specifically, they report that the issues being handled by partnerships include subjects arguably within the ambit of section 7106(b)(1) of the Statute, such as budget and staffing, reorganization, and reengineering/redesign.(26) See NPC 1996 Report at 15. Moreover, with respect to the Executive Order as a whole, the NPC has reported that "progress toward the ambitious goals envisioned in the Executive Order has been significant and is being sustained." NPC 1996 Report at 51. Three years after the Executive Order was issued, the NPC presented case studies that show "success in saving money, improving customer service, improving efficiency, empowering employees to get results, and improving the resolution of disputes." Id.

In presenting its 1996 report, the NPC acknowledged that barriers to partnership remain. The NPC also pointed out that the success of partnership does not mean that negotiations are not "frustrated by negotiability disputes." Id. at 31. Indeed, the existence of the cases now before us highlight this reality. However, there is a world of difference between the existence of disputes and the assertion that enforcement in an unfair labor practice proceeding is necessary to give the Executive Order meaning.

Thus, there is considerable basis for viewing the Executive Order as, indeed, meaningful even in the absence of statutory enforcement of the bargaining direction in Section 2(d). However, any doubts on this point, or expectation that enforcing Section 2(d)'s bargaining requirement through unfair labor practice proceedings would further the Executive Order's objectives, cannot overcome the unambiguous intent expressed in the Executive Order itself.

C. Conclusion

Consistent with the foregoing, we conclude that there is no basis for straining our construction of the words in Section 2(d) of the Executive Order to convey a meaning beyond their plain terms. Put simply, we find insufficient support for interpreting Section 2(d) of the Executive Order to mean anything other -- or more -- than what it unambiguously states: a direction by the President to agency officials to engage in bargaining over subjects defined in the Statute. Accordingly, we conclude that Executive Order 12871 does not constitute an election under the Statute to bargain over section 7106(b)(1) subjects. As this is the only asserted source of the alleged election to bargain over the disputed decision to use term appointments, the General Counsel has not established that the Respondent elected to bargain over this decision. Although the Respondent could elect, under the Statute, to bargain over the substance of its decision to use term appointments, it did not do so. Questions concerning the Respondent's compliance with the Executive Order, consistent with Section 3, are properly resolved as a matter involving the internal management of the Executive branch.

Our conclusion that Section 2(d) of Executive Order 12871 does not constitute an election under the Statute to bargain resolves the remaining allegation in this case.(27) Thus, there is no need resolve other issues that would be relevant if the Executive Order constituted an election -- concerning the requirements applicable to bargaining during the period of an effective election, or questions related to retroactivity and remedy.(28) The portion of the complaint alleging that the Respondent violated the Statute by failing to bargain over the decision to use term appointments must be dismissed.

We concluded in the Partial Decision that the Respondent violated the Statute by failing to bargain over the impact and implementation of its decision. We find no basis for reconsidering that conclusion. In addition, no exceptions were filed to the Judge's recommended remedy, encompassing a retroactive bargaining order and make-whole relief for adversely affected employees. The recommended remedy is consistent with those provided by the Authority in similar cases. See Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 51 FLRA 35, 37 (1995); Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, 32 FLRA 521, 525 (1988). Accordingly, we issue the Order and Notice attached hereto.

V. Order

Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Commerce, Patent and Trademark Office, shall:

1. Cease and desist from:

(a) Failing and refusing to bargain with the Patent Office Professional Association, the exclusive representative of an appropriate unit of employees, over the impact and implementation of the decision of the Patent and Trademark Office to use term appointments in hiring patent examiners in the bargaining unit represented by such representative.

(b) In any like or related manner, interfering with, restraining or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Bargain with the Patent Office Professional Association to the extent consistent with the Statute over the impact and implementation of the decision of the Patent and Trademark Office to use term appointments in hiring patent examiners and apply agreements reached pursuant to such negotiations retroactively to February 24, 1994.

(b) Based upon agreements reached pursuant to negotiations, make whole any bargaining unit employee for any losses suffered by such employee because of the failure to provide the Patent Office Professional Association prior notice and an opportunity to bargain over procedures to be observed in connection with the decision to use term appointments in hiring patent examiners and appropriate arrangements for adversely affected employees.

(c) Post at the U.S. Department of Commerce, Patent and Trademark Office in Crystal City, Virginia, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Assistant Commissioner for Patents and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.41 of the Authority's Regulations, notify the Regional Director of the Washington Region, Federal Labor Relations Authority in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Commerce, Patent and Trademark Office violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to bargain with the Patent Office Professional Association, the exclusive representative of an appropriate unit of bargaining unit employees, over the impact and implementation of our decision to use term appointments to hire certain patent examiners in the bargaining unit represented by such exclusive representative.

WE WILL NOT in any like or related manner interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE Will bargain with the Patent Office Professional Association over the impact and implementation of our decision to use term appointments in hiring patent examiners to the extent consistent with the Statute, and we will apply agreements reached pursuant to such negotiations retroactively to February 24, 1994.

WE WILL, based upon agreements reached pursuant to negotiations, make whole any bargaining unit employee for any losses suffered by such employee because of our failure to provide the Patent Office Professional Association prior notice and an opportunity to bargain over procedures to be observed in connection with our decision to use term appointments in hiring patent examiners and appropriate arrangement for adversely affected employees.

________________________________

(Activity)

Dated:_________ By:_________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Region, 1255 22nd Street, NW, Suite 400, Washington, DC 20037-1206, and whose telephone number is: (202) 653-8500.

Opinion of Member Wasserman, concurring in part and dissenting in part:

I concur with my colleagues regarding their holding that the subject matter at issue is within the parameters of section 7106(b)(1). In addition, I agree that our decision in VAMC, Lexington was correct and should not be set aside. I agree that the Respondent failed to bargain over the impact and implementation of its actions in violation of the law and that a retroactive bargaining order and make whole remedy are appropriate.

However, I dissent with respect to the determination about the duty to bargain over the section 7106(b)(1) proposals. I would hold that Executive Order 12871 constitutes an election to bargain. Consequently, I would find that the Respondent violated the Statute by its refusal to bargain in good faith over the substance of its decision to change conditions of employment after the election was made.

I. The President's Executive Order Constituted an Election to Bargain Over Section 7106(b)(1) Matters

The starting point for my analysis is whether the Executive Order constitutes an election to bargain under Section 7106(b)(1). Like the majority, I, too, look at the Executive Order in its entirety to discern its intent. However, as discussed more fully, infra, I cannot ignore the context in which the Executive Order was generated. My colleagues in the majority state that Section 2(d) of the Executive Order is the "sole source" of the argument that the Order constituted an election under the Statute. Slip op. at 17. They also examine the "precise words" of the Order to ascertain the meaning of the Order. Slip op. at 18. However, they fail to look beyond the words of Executive Order 12781, to its context, a failure which I believe results in an inaccurate reading of Presidential intent.

The Executive Order embodied an attempt by the Administration to foster a major change in the way labor-management relations functioned within the federal government. Numerous contextual matters shed light on the meaning of the words of the Order, and more specifically, explain the intention of the President's Order regarding expanded bargaining. The dialogue between the unions and the Administration is instructive as to the extent of the change contemplated by the Executive Order, as are the various interpretations of the Office of Personnel Management and agency officials. To ignore the context of the Executive Order while looking only at its "precise words" is similar to looking only at the eye of the hurricane -- the narrow focus leads to a misunderstanding of the calm existing within the surrounding swirl of activity.

With respect to the type of evidence we should consider, I note the majority's reference to a lack of "direct evidence of the President's intent." Supra at n.21. We have never required only direct evidence, and I am content to review all of the evidence of the President's intent as it relates to the Respondent's election to bargain.(1) Cf. Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 32 FLRA 335, 339 (1988) (Authority acknowledged propriety of using circumstantial evidence to establish statutory violation); Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 27 FLRA 277, 282 (1987) (Authority finds inference of illegal motive from facts presented to establish unlawful discrimination under the Statute).

The majority states that a directive to bargain does not equate to an election to bargain. Slip op. at 3, 19 and 28. In doing so, the point is made that the "plain terms" of the Order constitute a direction only. Id. at 28. However, labor relations rest on the meaning that parties ascribe to the "plain terms" of their communications. Indeed, the Authority has frequently looked at negotiated language to determine that an agency has made an election to bargain, without requiring that the agency say in a preamble or in the provision that it has "elected" to bargain permissive topics. See, e.g.,National Treasury Employees Union, Chapter 97 and U.S. Department of the Treasury, Internal Revenue Service, Fresno Service Center, 45 FLRA 1242, 1250 (1992) (In sustaining arbitral enforcement of a contested 7106(b)(1) matter, the Authority states that "[i]n our view, Article 14, section 2 represents the Agency's election to bargain over the type of employees..." (emphasis added)).

In determining whether the Order represents an election to bargain, I begin by looking at its opening terms, which are as follows:

The involvement of Federal Government employees and their union representatives is essential to achieving the National Performance Review's Government reform objectives. Only by changing the nature of Federal labor-management relations so that managers, employees, and employees' elected union representatives serve as partners will it be possible to design and implement comprehensive changes necessary to reform Government.

E.O. 12871 at 1.

The President thereafter invoked his authority under the United States Constitution "to establish a new form of labor-management relations throughout the executive branch to promote the principles and recommendations adopted as a result of the National Performance Review[.]" Id. Thus, the President's order regarding the scope of bargaining must be viewed in the context of his seeking to implement the goals of the National Performance Review (hereinafter NPR). Those goals include, inter alia, a 12% reduction in civilian personnel over five years. Creating A Government That Works Better & Costs Less, Report of the National Performance Review at 156, Vice President Al Gore, September 7, 1993.

It is commonly understood that the federal unions struck an agreement with the administration to receive expanded bargaining rights in exchange for their cooperation in the National Performance Review. I take official notice of various articles in the public domain:

On September 29, 1993, three days prior to the execution of the Executive Order, the Washington Post reported that

Federal agencies for the first time would be required to bargain with unions over items such as the number of workers assigned to tasks, their grade and pay levels and tours of duty under an executive order that the president is likely to issue this week.

. . . .

Insiders believe [that] unions got most of what they wanted in return for soft-pedaling opposition to President Clinton's decision to eliminate 252,000 jobs or cancel January's 2.2 percent national pay raise. . . .

Mike Causey, "A Bargain for Unions," Washington Post, September 29, 1993.

On October 2, 1993, the day after the Executive Order was signed, the Austin American-Statesman reported that President Clinton sought legislation the previous day "to speed his cutback of the federal work force by offering 'buyouts'"...and that "the leaders of the three largest federal employee unions praised Clinton for 'broadening the scope of collective bargaining.'" Stephen Barr, "Clinton Pushing 'Buyout' Incentive to Cut Back on Federal Work Force," Austin American Statesman, October 2, 1993. It was noted on October 3, 1993 that "Clinton signed an executive order Friday to give unions greater power, directing agencies to negotiate over work assignments, work practices and job classifications. . . . The downsizing aspect of restructuring calls for cutting 252,000 jobs, a 12% reduction in federal bureaucracy." "Clinton Boosts Federal Unions, Seeks Buyouts," Associated Press, Rocky Mountain News, October 3, 1993.

The federal unions "wanted collective bargaining on a broad scope of issues, a place at the negotiating table when agencies started reorganizing themselves[.]" Tom Shoop, "Swing Your Partner," Government Executive, March, 1994, at 31. Vice President Gore wanted "to avoid the embarrassment" of union opposition to his National Performance Review goals, and the cost of union support was expanded bargaining and partnership. Id.

We simply cannot ignore the quid pro quo aspect of the Executive Order, and the obvious intent of the President in issuing the Order.(2) He framed the entire document within the context of achieving cooperation in accomplishing his NPR goals, and the trade-off for acquiring union cooperation was his election to bargain over the permissive subjects listed in section 7106(b)(1). The President's election to bargain comes in the form of an order to his subordinate staff, but it is nonetheless an election. As the General Counsel and the Charging Parties have argued, the order to bargain is evidence of the President's election on the part of his subordinates to bargain (b)(1) matters. General Counsel's Brief at 41; AFGE Brief at 18.(3)

The President's intention to elect to bargain is further evidenced by the nearly contemporaneous implementing guidance of the Office of Personnel Management (OPM). OPM serves generally as the controlling agency regarding civil service employment matters. See 5 U.S.C. § 1103(a). OPM was given a special role as a member of the Partnership Council and was given authority by the Executive Order to perform the President's duties under the Federal Advisory Committee Act.(4) Executive Order 12871, Sec. 1(d)(2). The delegated authority includes "taking action, where appropriate, with respect to public recommendations made by" the advisory committee. 5 USCA App. 2, § 6. While the implementation guidance may not have been adopted by OPM pursuant to a formal report from the committee, OPM acknowledged in its cover memorandum to the guidance that the National Partnership Council discussed the draft. In any event, OPM enjoys a special status in the federal government as the personnel arm of the Administration.(5)

The OPM guidance, issued on December 16, 1993, stated in pertinent part:

Under Executive Order 12871, bargaining over the subjects set forth in 5 U.S.C. § 7106(b)(1) is now mandatory, and a failure by agency managers to engage in such bargaining would be inconsistent with the President's directive.

OPM Guidance for Implementing Executive Order 12871 at para. 4. It is noteworthy that the OPM Guidance refers to matters pertaining to the Partnership Council, training in ADR and other non-bargaining matters using the words "should" or "may." With respect to (b)(1) bargaining, however, OPM states that "Agency and union representatives will bargain over § 7106(b)(1) subjects in good faith, using interest-based bargaining, with the objective of reaching an agreement." Id. at para. 4.a. (emphasis added). Moreover, OPM states that the "obligation to bargain" over (b)(1) subjects would occur with respect to changes arising after the effective date of the Executive Order. OPM Guidance at para. 4. The language of the OPM guidance, including the word "obligation", supports the conclusion that the President elected to engage in permissive bargaining. OPM's instruction to the parties to take impasses to the FSIP casts no doubt on the President's election to bargain. See OPM Guidance at para. 4.b. It is an unfair labor practice to insist upon permissive subjects to impasse, but a binding election to bargain transforms the nature of the proposals, making them appropriate for FSIP review.

As my colleagues point out, OPM now states in an amicus brief that it views the Executive Order as a direction and not an election. OPM Brief at 5. Indeed, I find that agency's back-peddling confounding, for it takes the clear wording of the Executive Order ("the head of each agency shall...negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1). . .) and states in its brief that the "plain meaning" of the Order is to "discuss section 7106(b)(1) issues and resolve disputes in the spirit of partnership[.]" OPM Brief at 3-4 (emphasis added). The word "negotiate" has dropped inexplicably from OPM's understanding of the Order. One more cynical than this writer might suggest that now having achieved downsizing and left to its own devices, the personnel arm of government has attempted to redefine "partnership" to move away from the principles it was advocating in the months immediately following the introduction of the National Performance Review goals and the Executive Order.(6)

Contrary to the current view of OPM, I find further support for my reading of the Executive Order from the evidence presented in this case. The former Director of Human Resources for Respondent, who was responsible for the labor relations program, Tr. 69-70, stated that the Executive Order "[took] away the discretion that management had under (b)(1)." Tr. 71; 100. This testimony confirmed that the Executive Order itself took away the agency's discretion, not that it was simply an order to the agencies to exercise their discretion in a certain manner.

This case is, after all, an unfair labor practice case. The Authority will look at the "totality of the circumstances" in its determination of whether a violation of law has occurred. See U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 531 and 536 (1990). In concluding that the Respondent, as a result of the exercise of the inherent authority of the President of the United States, was subject to the election to bargain over permissive subjects, I am compelled to look at the "totality of the circumstances." While my colleagues question the probative value of the surrounding evidence which I have examined, I believe that our precedent requires us to look at the whole picture. The totality of the circumstances makes it clear that the President's Order is equivalent to an election to bargain.

My colleagues dispute my conclusion for various reasons. They focus on the purposes of the Executive Order as being to improve labor-management relations as well as to improve management of the Executive Branch. Slip op. at 19-23. Non-adversarial consensus building was one of the goals of the Order. In light of the President's intention to downsize the federal government by over a quarter of a million employees, the need for consensus with the unions was indeed important. In my view, however, consensus can be achieved only when the playing field is reasonably level; otherwise, the stronger party simply dictates. The President's election to bargain over Section 7106(b)(1) matters represented one of his efforts to create a relatively level playing field and the resulting context for consensus-building. Moreover, Section 7106(b)(1) bargaining itself offers a non-adversarial way to reduce the workforce. Cf. National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA 427 (1997) (Section 7106(b)(1) proposals regarding numbers of employees assigned to organizational subdivisions presented in context of RIF).

As noted by the majority, supra at 20-21, the Executive Order prescribed actions in addition to (b)(1) bargaining: establishment of partnerships, involvement of unions in problem-solving, provision of training in ADR, and evaluation of performance improvements flowing from partnerships. Executive Order, Sec. 2. The majority identifies these items as being "outside the framework of legal rights and obligations defined in the Statute." Slip op. at 21. My colleagues then draw the conclusion that since the bargaining election appears in that context, it too, is outside the rights and obligations of the Statute. Id. I draw a different conclusion. The bargaining mandate is made with specific reference to 5 U.S.C. 7106(b)(1), which sets it apart from the other directives. Had the President wanted to divorce expanded bargaining from the Statute, he could have said that the agencies "shall bargain more expansively" or something to that effect. Instead, he made the permissive topics of (b)(1) mandatory subjects of bargaining -- an act that is accomplished through the election evidenced by both the language of his Executive Order and the context in which it was engendered.

II. The President Had the Authority to Elect to Bargain

The President included the U.S. Constitution in the list of legal authorities for Executive Order 12871. The Constitution provides that the "Executive Power shall be vested in the President of the United States of America." Constitution, Art. II., Sec. 1. That power extends to execution of the laws through those who act at the President's direction pursuant to his constitutional authority. See generally, Myers v. United States, 272 U.S. 52, 117-18 (1926); In re Neagle, 135 U.S. 1, 63-64 (1890).

In an amicus brief filed by NTEU, it was argued that the theory of a "unitary executive" served to equate the president's actions with those of his subordinate agencies. NTEU Brief at 6. Although not cited in that brief, the following excerpt from a law review article describes the concept succinctly:

The President is the head of the executive branch and has the constitutional power to appoint its senior executives. This power includes a power of supervision to guarantee the "unitary and uniform execution of the laws" and implies a power to remove insubordinate appointees in the "purely executive" or non-independent agencies.(7) In fact, the executive's relationship is so close to these agencies that historically their acts were regarded as his. . . for purposes of applying the doctrine that an agency must follow its "own" rules, it would not strain logic or political theory to take a "unitary" view of the purely executive agencies and the President, and thus to consider the President's rules as those of the agencies. One court implicitly took this view when it explained enforcement of executive agency compliance with an executive order as a "specific application of the general principle that agencies may be required to live up to their own rules." [Citations omitted; footnote not in original.]

"Making Agencies Follow Orders: Judicial Review of Agency Violations of Executive Order 12,291," Peter Raven-Hansen, 1983 Duke L. Rev. 285, 312.

In accord with this view, I believe that the head of the Executive Branch had the authority to elect to bargain on behalf of his subordinate staff. This theoretical understanding of Executive power is supported by the historical exercise of that power. Prior to enactment of the Statute, the federal sector labor-management relations program was established by Executive Order 11491. The Supreme Court viewed the establishment of mandatory labor-management bargaining and dispute resolution procedures as an exercise of the president's authority under the Constitution and 5 U.S.C. § 7301. Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 n.5 (1974). Thus, the president can rely on his constitutional powers and the statutory authority to "prescribe regulations for the conduct of employees in the executive branch" to control managerial actions in the labor arena. See 5 U.S.C. § 7301.

III. The Duty To Bargain In Good Faith Attaches to Permissive Bargaining in the Federal Sector

The Respondent argues that even if an election were made by the President, permissive bargaining may cease at the will of the agency. PTO Brief at 31-34. On the other hand, the General Counsel argues that the duty to bargain in good faith arises after an election to bargain permissive topics, and the duty remains until the election is revoked. General Counsel Brief at 31-32. I agree with the General Counsel's view. Once the President made the election to bargain, the agencies had a duty under the Statute to engage in good faith bargaining for the period of time that the parties are engaged in the negotiation process. Cf. Law Enforcement Labor Services, Inc. v. County of Mower, 483 N.W. 2d. 696, 700 (MN Sup. Ct. 1992); Hawaii Code § 89-9 (only health benefits are not subject to good faith bargaining to impasse). Where state law has sanctioned an agreement to bargain over permissive topics, bad faith may arise not only from the refusal to bargain over such topics in spite of the agreement to do so, but also with respect to the process of bargaining over the permissive topic. See Chicago Board of Education District No. 299, 5 PERI 1092, 1989 PERI (LRP) LEXIS 201 at *23.(8) Like the law in Illinois, our case law makes it clear that an agency can be bound by its agreement to negotiate over 7106(b(1) subjects. See National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway., 24 FLRA 56, 62 (1986) ("agreement provisions may not be disapproved by an agency head under section 7114(c) simply because they relate to section 7106(b)(1) matters"). Since a commitment to bargain over permissive subjects is enforceable, so, too should be the duty to bargain in good faith.

The attachment of the good faith requirement to permissive bargaining in the federal sector is underscored by the wording of 5 U.S.C. § 7116(a)(5), which connects the good faith requirement to the process of bargaining, in contrast to section 7117, which addresses good faith in the context of the subject matter. Permissive topics are not excluded from the parameters of the good faith requirement, nor should they be. Moreover, as noted by PASS in its amicus brief, section 7106(b)(1) subjects are "permissive" under our Statute only because they are negotiated at the election of the agencies; the topics themselves concern conditions of employment which are viewed in the private sector as mandatory subjects of bargaining. PASS Brief at 4. This distinction provides an additional basis for my determination that a good faith obligation attaches to permissive bargaining.

For the period of bargaining between an election and the revocation of an election, the parties should be required to approach negotiations with the same honesty and resolve to reach agreement that they would bring to bear on mandatory subjects. This is consistent with the goals embodied in the partnership concept. In this case, the Respondent was obligated to bargain in good faith subsequent to the election, and its failure to do so regarding the section 7106(b)(1) matters constitutes an unfair labor practice as much as its failure to bargain impact and implementation.

I continue to adhere to the consensus of the parties that one can withdraw from permissive bargaining prior to agreement, and that absent a statutory or executive mandate, it is improper to insist upon a permissive subject to impasse. Such a conclusion does not dictate a different view of the duty to bargain in good faith that attaches to negotiations after an election and prior to either revocation or agreement. However, in this case, the Respondent has not attempted to withdraw the President's election to bargain, and indeed, it lacks the power to do so. Only the President can withdraw his election. The President has amended E.O. 12871, but has not changed the bargaining language to effect a revocation.

IV. The Good Faith Bargaining Obligation Is Enforceable Under the Statute

I am not troubled by Section 3 of the Executive Order which states that the President does not intend to "create" the right of administrative or judicial review, or to create any enforceable right. I agree with the General Counsel and the charging parties that the Executive Order constitutes an election to bargain, and we are simply reviewing the unfair labor practice charges that are within our jurisdiction. General Counsel Brief at 16, 36; NATCA Brief at 8-10; NAGE Brief at 10-11. The effect of Section 3 is to prevent individuals or parties from enforcing the Order in court or in arbitration.(9) The Authority applies its own law, and that application may involve the interpretation of executive orders. For example, Executive Order 12564 on a "Drug Free Federal Workplace" has been interpreted as a "law" for purposes of measuring the viability of contract proposals. However, the Authority is not "enforcing" that Executive Order, any more than it would be enforcing Executive Order 12871 by applying unfair labor practice standards to agency actions that result from the Order. See AFGE Brief at 20-22.

The General Counsel has made it abundantly clear that he is not attempting to enforce the provisions of the Executive Order. In her post-hearing brief to the ALJ in this case, the Counsel to the General Counsel wrote:

The General Counsel's Complaint charged the Respondent with failing to execute its statutory duty to bargain over 7106(b)(1) subjects. (G.C. Exh. 1(b), para. 13) The General Counsel is not attempting to enforce any right which may or may not be created in the Executive Order. Thus, Section 3 of the Executive Order is inapplicable here.

General Counsel's Post-hearing Brief to the Administrative Law Judge at 22.

In essence, the language of section 3 cannot obviate the effect of the Statute. The duty to bargain remains alive and well, and it is enforceable through unfair labor practice proceedings. Surely the President did not intend to elect to bargain (or as the majority would say, direct the agencies to bargain) and with the same pen render the election to bargain meaningless. In this regard, I recognize that even without enforcement of the election to bargain through unfair labor practice proceedings, the Executive Order has offered valuable direction to the agencies subject to its authority.

In support of the value of the Executive Order, the majority cites to reports of the National Partnership Council that note that there is increased bargaining over non-negotiable matters and that staffing and reorganization were among the items discussed. See infra at 25-26. While I laud increased bargaining, the fact that 49% of respondents to a survey say that they now discuss non-negotiable matters sheds little light on the extent to which the agencies are abiding by the President's election to bargain. If the report meant to refer to bargaining over (b)(1) matters, I find 49% to be shockingly low. The majority does note that "the success of partnership does not mean that "negotiations are not 'frustrated by negotiability disputes.'" Id. at 28, citing NPC 1996 Report at 31. In that same report, the Partnership Council acknowledged that 39% of the union survey respondents stated that negotiability disputes frustrated bargaining "always or most of the time." NPC 1996 Report at 31. Proper application of our unfair labor practice proceedings would undoubtedly result in fewer negotiability disputes and increased bargaining, consistent with the President's Order.

V. Conclusion

The majority focuses on the purposes of the Executive Order, including the furtherance of good labor relations and non-adversarial partnerships. I agree with that focus. My viewpoint is consistent with the purposes of the Order. The Partnership Council, which included the then incumbent Under-Secretary of Defense, Deputy Secretary of Labor, Director of OPM, Chair of the FLRA, Assistant Secretary for Management of the Department of the Treasury, and Director of FMCS, wrote these words in 1994:

Ultimately, the success of the National Performance Review and the goals of Executive Order 12871 will rest with the efforts to create and maintain viable labor management partnerships. We have been given an opportunity under Executive Order 12871 to formalize our commitment to partnership. Engaging in mandatory bargaining over the subjects set forth in 5 U.S.C. § 7106(b)(1) allows the partners to forge a working environment that is conducive to a more effective and efficient government.

National Partnership Council, Partnership Handbook, July, 1994 at 19. The Partnership Council, itself, recognized that the President's making section 7106(b)(1) matters the subject of mandatory bargaining was consistent with the goals of the President's Executive Order.

The forcefulness of the President's words, combined with the context of his desire to improve labor-management relations and to obtain union support for his far-ranging reinvention initiatives, lead me to an inescapable conclusion. I would find that the Executive Order manifests the President's election to bargain permissive areas and is binding upon the agencies. The President's election to bargain prompted a duty to bargain in good faith. The Respondent's refusal to do so cuts at the heart of good labor relations. An unfair labor practice has occurred through the failure to bargain over the substance of section 7106(b)(1) matters. Today's decision to the contrary does not further the objectives of the Statute to achieve effective and efficient government. Moreover, it does not further the objective of the Executive Order to accomplish change through partnership.

Appendix I

Executive Order 12871

Labor-Management Partnerships

October 1, 1993

The involvement of Federal Government employees and their union representatives is essential to achieving the National Performance Review's Government reform objectives. Only by changing the nature of Federal labor-management relations so that managers, employees, and employees' elected union representatives serve as partners will it be possible to design and implement comprehensive changes necessary to reform Government. Labor-management partnerships will champion change in Federal Government agencies to transform them into organizations capable of delivering the highest quality services to the American people.

By the authority vested in me as President by the Constitution and the laws of the United States, including section 301 of title 3, United States Code, and in order to establish a new form of labor-management relations throughout the executive branch to promote the principles and recommendations adopted as a result of the National Performance Review, it is hereby ordered:

Section 1. The National Partnership Council. (a) Establishment and Membership. There is established the National Partnership Council ("Council"). The Council shall comprise the following members appointed by the President:

(1) Director of the Office of Personnel Management ("OPM");

(2) Deputy Secretary of Labor;

(3) Deputy Director for Management, Office of Management and Budget;

(4) Chair, Federal Labor Relations Authority;

(5) Federal Mediation and Conciliation Director;

(6) President, American Federation of Government Employees, AFL-CIO;

(7) President, National Federation of Federal Employees;

(8) President, National Treasury Employees Union;

(9) Secretary-Treasurer of the Public Employees Department, AFL-CIO; and

(10) A deputy Secretary or other officer with department- or agency-wide authority from two executive departments or agencies (hereafter collectively "agency"), not otherwise represented on the Council.

Members shall have 2-year terms on the Council, which may be extended by the President.

(b) Responsibilities and Functions. The Council shall advise the President on matters involving labor-management relations in the executive branch. Its activities shall include:

(1) supporting the creation of labor-management partnerships and promoting partnership efforts in the executive branch, to the extent permitted by law;

(2) proposing to the President by January 1994 statutory changes necessary to achieve the objectives of this order, including legislation consistent with the National Performance Review's recommendations for the creation of a flexible and responsive hiring system and the reform of the General Schedule classification system;

(3) collecting and disseminating information about, and providing guidance on, partnership efforts in the executive branch, including results achieved, to the extent permitted by law;

(4) utilizing the expertise of individuals both within and outside the Federal Government to foster partnership arrangements; and

(5) working with the President's Management Council toward reform consistent with the National Performance Review's recommendations throughout the executive branch.

(c) Administration. (1) The President shall designate a member of the Council who is a full-time Federal employee to serve as Chairperson. The responsibilities of the Chairperson shall include scheduling meetings of the Council.

(2) The Council shall seek input from nonmember Federal agencies, particularly smaller agencies. It also may, from time to time, invite experts from the private and public sectors to submit information. The Council shall also seek input from companies, nonprofit organizations, State and local governments, Federal Government employees, and customers of Federal Government services, as needed.

(3) To the extent permitted by law and subject to the availability of appropriations, OPM shall provide such facilities, support, and administrative services to the Council as the Director of OPM deems appropriate.

(4) Members of the Council shall serve without compensation for their work on the Council, but shall be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law, for persons serving intermittently in Government service.

(5) All agencies shall, to the extent permitted by law, provide to the Council such assistance, information, and advice as the Council may request.

(d) General. (1) I have determined that the Council shall be established in compliance with the Federal Advisory Committee Act, as amended (5 U.S.C. App. 2).

(2) Notwithstanding any other executive order, the functions of the President under the Federal Advisory Committee Act, as amended, except that of reporting to the Congress, that are applicable to the Council, shall be performed by the Director of OPM, in accordance with guidelines and procedures issued by the Administrator of General Services.

(3) The Council shall exist for a period of 2 years from the date of this order, unless extended.

(4) Members of the Council who are not otherwise officers or employees of the Federal Government shall serve in a representative capacity and shall not be considered special Government employees for any purpose.

Sec. 2. Implementation of Labor-Management Partnerships Throughout the Executive Branch. The head of each agency subject to the provisions of chapter 71 of title 5, United States Code shall:

(a) create labor-management partnerships by forming labor-management committees or councils at appropriate levels, or adapting existing councils or committees if such groups exist, to help reform Government;

(b) involve employees and their union representatives as full partners with management representatives to identify problems and craft solutions to better serve the agency's customers and mission;

(c) provide systematic training of appropriate agency employees (including line managers, first line supervisors, and union representatives who are Federal employees) in consensual methods of dispute resolution, such as alternative dispute resolution techniques and interest-based bargaining approaches;

(d) negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same; and

(e) evaluate progress and improvements in organizational performance resulting from the labor-management partnerships.

Sec. 3. No Administrative or Judicial Review. This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any other right, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

WILLIAM J. CLINTON

THE WHITE HOUSE,

October 1, 1993.

Executive Order 12983

Amendment to Executive Order No. 12871

December 21, 1995

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve the functioning of the National Partnership Council, it is hereby ordered that Executive Order No. 12871, entitled "Labor-Management Partnerships," ("the order") is amended as follows:

Section 1. Section 1(a) of the order is amended to delete "and" at the end of item (9), delete the period at the end of item (10), add "; and" at the end of item (10), and add item "(11) one elected office holder each from both the Senior Executives Association and the Federal Managers Association."

Sec. 2. Section 1(b) of the order is amended to delete "and" at the end of item (4), delete the period at the end of item (5), add "; and" at the end of item (5), and add "(6) reporting to the President by October 1996 on the progress of and results achieved through labor-management partnership throughout the executive branch."

Sec. 3. Section 1(c)(2) of the order is revised to read: "(2) The Council shall seek input from nonmember Federal agencies, particularly smaller agencies. It also may, from time to time, invite experts from the private and public sectors to submit information. The Council shall also seek input from Federal manager and professional associations, companies, nonprofit organizations, State and local governments, Federal employees, and customers of Federal services, as needed."

Sec. 4. Section 1(c)(4) of the order is revised to read: "(4) Members of the Council shall serve without compensation for their work on the Council, but may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law, for persons serving intermittently in Government service."

WILLIAM J. CLINTON

THE WHITE HOUSE,

December 21, 1995.

APPENDIX II

1.Under what circumstances, if any, does an election to bargain under section 7106(b)(1) of the Statute create rights and obligations that are enforceable through unfair labor practice proceedings?

2.If there are circumstances when an election to bargain is enforceable under the Statute, are those circumstances present here? For example, if an "irrevocable" election can be made, has such an election been made here?

3.Does section 2(d) of Executive Order 12871 constitute an agency election, within the meaning of section 7106(b)(1) of the Statute, to bargain on proposals on matters set out in section 7106(b)(1)?

4.If an election to bargain creates rights and obligations that are enforceable under any circumstances, what is the extent of the bargaining required to satisfy the obligations? For example, does the obligation to bargain extend to impasse, or is it satisfied by some other "amount" of bargaining?

5.In view of the fact that the President's issuance of Executive Order 12871 is the only basis asserted for finding that an election to bargain has been made that is binding on the Agency, is enforcing the election barred by Section 3 of the Executive Order?

6.If the Authority were to find that there are circumstances when an election to bargain is enforceable under the Statute, and that such circumstances are present here, should a violation be found in this case? If so, what is the appropriate remedy to enforce the election?

U.S. Department of Commerce, 53 FLRA at 879-80.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

U.S. DEPARTMENT OF COMMERCE, PATENT AND TRADEMARK OFFICE,

Respondent

and

PATENT OFFICE PROFESSIONAL

ASSOCIATION

Charging Party

Case No. WA-CA-40743

Barbara S. Mintz

Counsel for the Respondent

Pamela R. Schwartz

Counsel for the Charging Party

Marilyn Blandford

Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER

Administrative Law Judge

DECISION

I. Statement of the Case

The unfair labor practice complaint alleges that the U.S. Department of Commerce, Patent and Trademark Office (Respondent or Agency) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (5), by using two-year term appointments to fill patent examiner (computer science) positions without providing the Charging Party (Union) with an opportunity to negotiate to the extent required by the Statute. In support of this allegation, the complaint also alleges that by issuing Executive Order 12,871, the President exercised the Respondent's discretion to negotiate over section 7106(b)(1) subjects. The complaint alleges that "[s]ince on or about June 20, 1994, the Respondent has refused to negotiate with the Charging Party over the use of two-year appointments to fill the subject positions."

The Respondent claims that the General Counsel and the Charging Party have failed to meet the burden of establishing that the Agency committed an unfair labor practice. The Respondent contends that (1) the Union never requested that the Agency negotiate over the use of term appointments, (2) there was no change in the conditions of employment of any bargaining unit members that would have triggered an impact and implementation bargaining obligation on the Agency's part; (3) the Agency's hiring decision fell within section 7106(a) as a management right, thus taking the matter outside the duty to bargain, (4) even if the Agency's actions were found to constitute a staffing decision within section 7106(b)(1), the Agency's inadvertent failure to adhere to Executive Order 12,871 does not provide the Authority with enforcement rights concerning compliance with the Order, and (5) throughout the events that gave rise to the charge, the Agency held the good faith belief that its hiring decisions were outside the duty to bargain and were not affected by Executive Order 12,871.

For the reasons set out below, I conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain with the Union on the impact and implementation of its decision to use two-year term appointments to fill patent examiner (computer science) positions in the bargaining unit. I also conclude that Respondent did not violate the Statute by refusing to negotiate pursuant to section 7106(b)(1) of the Statute. The Respondent has not exercised its discretion to negotiate pursuant to section 7106(b)(1), and the President's directive to the heads of agencies in Executive Order 12,871 did not exercise that discretion.

A hearing was held in Washington, D.C. The Respondent, Charging Party, and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. Each of the parties filed an excellent brief.

Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

II. Findings of Fact

The Union represents a bargaining unit of approximately 2,200 patent examiners at the Respondent. Patent examiners analyze applications for patents for new inventions.

Examiners are categorized into different examining groups and subgroups (called "art units") according to the specific type of technology with which they deal. Prior to the Agency's actions that resulted in the instant unfair labor practice charge, the Agency's patent corps did not have a specific computer science specialty within the various examiner specialties.

For some time prior to the events that gave rise to this complaint, the Agency had desired to expand the scope of computer science knowledge in the patent corps. However, Agency management was concerned that computer scientists might have problems performing the duties of patent examiners. As one option, the Agency considered the possibility of an apprentice program, with the computer scientists hired on an assistant level with limited duties. These discussions eventually led to the actual preparation of a vacancy announcement and package concerning the assistant-type position; however, the apprentice program was ultimately not accepted by management.

Instead, the Agency decided to expand the categories of examiner specialties to include computer science and to hire the computer science specialists as full examiners -- but on two-year term appointments so that management could reevaluate whether the expansion of the examiner disciplines to include computer science had been a good decision.

The Agency discussed with the Union the creation of a computer science specialty, and the Union supported the idea. However, the Agency did not notify the Union that the new specialty would be implemented on a two-year trial basis.

The Agency had not previously used term appointments for new examiners. It had only used such appointments for positions outside the bargaining unit.

On December 27, 1993, the Agency provided the Union with the required notification that it was creating a new position description for the position of Patent Examiner (Computer Science). Due to an oversight by an Office of Human Resources (OHR) staffperson, the copies of the position description that were delivered to the Union were erroneously coded as permanent, rather than term, positions.

Consistent with the information supplied previously by the Respondent, the position description indicated that the patent examiner (computer science) position was to be a permanent position located in the Charging Party's bargaining unit, with a target grade of GS-13. The Respondent also informed the Charging Party that it would shortly issue a vacancy announcement for the new position.

When the Charging Party received the position description for the new examiner specialty, it appeared to be consistent with the information provided by the Respondent up to that point. Consequently, the Charging Party did not request bargaining.

Respondent issued a vacancy announcement on January 18, 1994 seeking candidates for up to 10 patent examiner (computer science) positions. The positions were for the GS-5 level with promotion potential to GS-9 and at the GS-7 and GS-9 level with promotion potential to GS-11. The announcement correctly indicated that the position would be filled by term appointments. However, it erroneously described the new positions as performing "portions of patent research assignments to assist Patent Examiners."(1) The announcement opened on January 18, 1994, and was to remain open until April 29, 1994.

The Union learned of the vacancy announcement on February 24, 1994 and immediately wrote a memorandum to Lawrence J. Goffney, then Assistant Commissioner for Patents Designate, questioning the duties and use of term appointments for the positions. Mr. Stern wrote, in pertinent part:

Today, a member showed me the attached vacancy announcement for what looks like a new twist on team examination. Our concern is based upon the description of the job as performing "portions of patent research assignments to assist patent examiner in the Computer Systems and Applications area" and that the job is a two-year temporary position.

I hope we're not being overly paranoid about this, but no one has ever suggested that the new computer science positions would be anything less than full fledged patent examiners.

We would appreciate an explanation of what is really intended.

A few days after sending that memorandum, Mr. Stern also called Mr. Goffney to discuss the inconsistent duties and the use of term appointments. Mr. Goffney informed Mr. Stern that he "would have someone get back to" the Charging Party. It is undisputed that Mr. Goffney never got back in touch with Mr. Stern regarding these positions.(2)

At the same time, the Agency was receiving applications for these positions. The vacancy announcement closed on April 29, 1994, and within the next two months, all the applicants were screened to determine which ten would be selected.

On June 20, 1994, Mr. Stern again wrote to Mr. Goffney, reminding him of his earlier inquiry and again requesting clarification or an explanation of the discrepancies surrounding the patent examiner (computer science) positions. Mr. Stern's memorandum, captioned, "Vacancy Announcements for Temporary Examining Positions in Computer Science," provided, in part, as follows:

The information that I had received for computer science positions showed positions that were permanent, positions that had promotion potential to grade 13, and positions having the duties of full fledged patent examiners (which include the drafting of actions). As we discussed previously, this information differs from the positions identified in the vacancy announcement.

If the Office is not setting up a new program and only intends to establish computer science as an additional examiner specialty, please let us know.

If, on the other hand, the Office is setting up a new program, we would like formal notification and an opportunity to bargain on the negotiable aspects of the program.

Again, there was no immediate response from the Respondent.(3)

Ten applicants were appointed to the patent examiner (computer science) positions on a two-year term basis effective June 27, 1994.

At about the same time, Respondent issued a press release announcing that it had hired ten examiners with two-year appointments. The release repeated the erroneous information from the vacancy announcement, that the new examiners would assist other patent examiners.

During a scheduled orientation session for new employees on June 27, 1994, the Union discovered that the Respondent had hired 10 employees on a two-year term basis to fill the patent examiner (computer science) vacancies.

The Union filed the unfair labor practice charge in this case on July 18, 1994. The charge alleged that Respondent violated the Statute "by hiring patent examiners having only limited terms and by denying these examiners the training and responsibility necessary for advancement previously available to all examiners, without providing the union with advance notice and an opportunity to negotiate." The charge referred to the diminished employment security and limited duties of the term employees and the effect on experienced employees of the junior examiners. The charge stated, "Negotiable aspects of impact and implementation of these changes include: items related to training and performance evaluation for both the term and experienced employees and procedures for reporting and accounting for the work of the term employees and the time spent by the experienced employees training the term employees and evaluating their search results. In addition, pursuant to a recent Executive Order, the numbers and types of employees assigned to any particular work project has become a negotiable item."

Representatives of the Respondent and the Charging Party met the following day, on July 19, 1994, to discuss the matter. At that meeting, the Respondent's representatives explained to the Charging Party's satisfaction that the duties of the patent examiner (computer science) positions were those of a regular patent examiner and not that of an assistant, as described erroneously in the vacancy announcement.

The parties also discussed Respondent's decision to make the positions term appointments. The Charging Party informed the Respondent that it believed the decision to use term appointments for the positions was substantively negotiable under section 7106(b)(1) of the Statute and that impact and implementation issues flowing from that decision were also negotiable. The Charging Party claimed that the term appointments were an evasion of the probationary period afforded other employees, and the new employees should have the same notice of deficiencies in their work and an opportunity to defend themselves as anyone else in the bargaining unit. Respondent's representatives replied that they had no obligation to negotiate over the use of term appointments because the decision to use those appointments involved the exercise of management rights and there was no effect on employees in the bargaining unit.

On August 10, 1994, Respondent sent the Union a memorandum responding to the Union's inquiries of February 24, 1994 and June 20, 1994 and information requests made by the Union at the July 19, 1994 meeting. The memorandum expressly did not address the unfair labor practice charge filed by the Union.

The record reflects that the patent examiners (computer science) were appointed to two-year terms, with only GS-9 or GS-11 promotion potential, but with the same type of duties and responsibilities as other examiners. The new examiners were also hired under the same performance appraisal plan that was used at that time for all other examiners. The new examiners did not affect the duties and responsibilities of the existing examiners, who continued to handle their own dockets.

The record does not reflect the current status of the patent examiner (computer science) discipline. Respondent intended to recruit for the positions on a permanent basis at the end of the two-year terms if satisfied with the long-term value of the discipline. In that event, the current term employees could compete for permanent positions. As of the date of the hearing, five term examiners had left the employ of the Agency, and the Union had received a report that one examiner was informed she would not be rehired when her two-year period was up on June 27, 1996.

III. Applicable Statutory Provisions

Section 7106 of the Statute provides, in pertinent part:

§ 7106. Management rights

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--

. . .

(2) in accordance with applicable laws--

(A) to hire . . . ;

. . .

(C) with respect to filling positions, to make selections for appointments . . . .

(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--

(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;

(2) procedures which management officials of the agency will observe in exercising any authority under this section; or

(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.

Section 7116(a)(1) and (5) provides:

§ 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency --

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

. . .

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter[.]

IV. Issues Presented

Whether the Union made a valid request to bargain over Respondent's use of term appointments to fill patent examiner (computer science) positions.

Whether there was a change in conditions of employment of bargaining unit employees.

Whether the Respondent's decision to use two-year term appointments fell within section 7106(a), thus placing its decision outside the duty to bargain.

Whether Executive Order 12,871 exercised the Respondent's discretion so that it was required to negotiate pursuant to section 7106(b)(1).

Whether the use of term appointments had a reasonably foreseeable effect on bargaining unit employees which gave rise to a duty to bargain pursuant to section 7106(b)(2) and (3).

Whether the Respondent's belief as to the propriety of its actions precludes the finding of a violation for failure to bargain in good faith.

V. Discussion and Conclusions

A.The Union Made A Valid Request To Bargain

In order to meet its burden of proving the commission of an unfair labor practice based on failure to bargain in good faith, a charging party must initially demonstrate that the agency refused a clearly communicated request to bargain from the union. Department of the Air Force, Air Force Logistics Command, 22 FLRA 15, 18 (1986).

Respondent claims that because the term appointments did not meet the criteria for a "new program" specified by the Union in Mr. Stern's June 20, 1994 request to bargain, the Respondent did not refuse a clearly communicated request to bargain from the Union. Respondent claims that the Union's concern had focused only on the possibility of team examination and that is what the Union meant by a "new program."

The June 20, 1994 request to bargain was as clear as it could be under the circumstances and encompassed a request to bargain on term appointments. The Respondent was responsible for the Union's confusion until July 19, 1994 over just what was being implemented for the new examiners, whether permanent or term appointments or limited or full duties. At that time, the Union made a clear request to negotiate over the use of term appointments.

The Union's February 24, 1994 inquiry identified the Union's concern with the vacancy announcement as involving both the limited duties and the two-year temporary positions. The Union's June 20, 1994 memorandum reiterated the request for clarification between the initial information provided it regarding permanent positions with full duties or the positions identified in the vacancy announcement with limited duties and two-year appointments. Thus, the Union's request--"If the Office is not setting up a new program and only intends to establish computer science as an additional examiner specialty, please let us know. If, on the other hand, the Office is setting up a new program, we would like formal notification and an opportunity to bargain on the negotiable aspects of the program." -- encompassed a request to bargain on the term appointments. As noted, when the errors were explained to the Union at the July 19, 1994 meeting and the Union was clearly informed that the computer science examiners, hired for two-year terms, would not be assisting the other examiners, the Union made a request to bargain over its remaining concern, the term appointments.(4)

B.There Was A Change In Conditions Of Employment

Section 7103(a)(14) of the Statute defines conditions of employment, with exceptions not relevant here, as "personnel policies, practices and matters, whether established by rule, regulation, or otherwise, affecting working conditions[.]" An agency's bargaining obligation is limited to such matters affecting bargaining unit employees. 5 U.S.C. § 7103(a)(12).

In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether: (1) the matter pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-38 (1986) (Antilles).

In Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 25 FLRA 465 (1987), the Authority held that where a proposal relating to pay distribution referred to new hires, but related solely to individuals designated for employment in bargaining unit positions, and had relevance specifically to employment in those positions, and became operative only after an individual had been employed, the matter pertained to bargaining unit employees under the first factor stated in Antilles. See also Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 352 (1986) (proposal one, orientation information mailing to selectees for bargaining unit positions negotiable), appealed on other grounds, 827 F.2d 814 (D.C. Cir., 1987).

Similarly, in American Federation of Government Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 11 FLRA 125, 126 (1983), the union proposed, among other things, that the basic rate of pay for new employees who previously worked as Federal employees would be established through the exercise of sound and reasonable managerial discretion. In finding the proposal negotiable, the Authority rejected the agency's argument that the proposal did not concern conditions of employment because it pertained to nonbargaining unit members. Instead, the Authority found that the proposal would benefit former employees only "if and when they are reemployed in bargaining unit positions." Consequently, the Authority concluded that the proposal involved conditions of employment and was within the duty to bargain under the Statute.

The same reasoning of these cases is applicable here. In this case, the record clearly establishes that, as a result of Respondent's decision to use term appointments to fill the positions, the Charging Party sought to negotiate over post-hiring matters affecting those positions, such as notice of termination of appointment, notice of any performance deficiencies, training and performance evaluation. (Tr. 66-67; G.C. Exh. 1(a) at page 4). No benefit would have been derived from the subject of the requested negotiations until after applicants were employed in bargaining unit positions.

Moreover, on June 20, 1994, the Charging Party requested negotiations with the Respondent over the use of term appointments. At that point, and unknown to the Charging Party, the Respondent was one week away from bringing on-board the 10 people it had hired for the patent examiner (computer science) vacancies. By the time the Respondent finally met with the Charging Party to discuss this matter, the incumbents of the positions had been employees for approximately three weeks. Thus, the Charging Party initially sought to bargain over conditions of employment of unit positions, and then over conditions of employment pertaining to actual employees. Thus, the Union's request to bargain about the Respondent's use of term appointments to fill patent examiner (computer science) positions pertains to bargaining unit employees under the first factor stated in Antilles.

The record clearly establishes the second factor in Antilles, a direct connection between the matter, term appointments, and the employment relationship of bargaining unit employees. Term appointments directly affect the employment relationship of bargaining unit employees in this instance as they involve a personnel policy affecting their tenure and status.

Accordingly, contrary to the position of the Respondent, the matter involved a condition of employment of bargaining unit employees.

C.The Respondent's Actions In Hiring Examiners For Term Appointments Is Not Substantively Negotiable

The Respondent was not required to bargain over its decision to hire approximately 10 employees for two-year term appointments in the newly created patent examiner (computer science) positions. An agency has statutorily reserved discretion to make hiring decisions. The right "to hire" is one of the exclusive management rights specifically enumerated in section 7106(a). National Association of Government Employees, Local R1-109, AFL-CIO and Veterans Administration Medical Center, Newington, Connecticut, 26 FLRA 532, 533-34 (1987).

D.The Agency Did Not Violate The Statute By Refusing To Negotiate Pursuant To Section 7106(b)(1)

Section 7106(b)(1) makes it clear that matters concerning "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty" are negotiable only at an agency's election. The General Counsel contends that the President exercised the Agency's discretion by issuing Executive Order 12,871 and, therefore, the Respondent violated section 7116(a)(1) and (5) by refusing to negotiate over the use of term appointments to fill the patent examiner (computer science) positions, a matter encompassed within section 7106(b)(1).

The President did not exercise the Agency's discretion. Executive Order 12,871, "Labor-Management Partnerships", issued October 1, 1993 (58 Fed. Reg. 52201-52203, Oct. 6, 1993), at Sec. 2.(d) directs the head of each agency to "negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same[.]" Nevertheless, the Respondent has not exercised its discretion to negotiate pursuant to section 7106(b)(1) in this case. Therefore, the Respondent did not violate section 7116(a)(1) and (5) of the Statute in this respect, as alleged, assuming that the matter falls within section 7106(b)(1).(5)

E.The Use Of Term Appointments Had A Reasonably Foreseeable Effect On Bargaining Unit Employees Which Gave Rise To A Duty To Bargain

"[A]n agency's authority to exercise the rights enumerated in section 7106(a) is expressly made 'subject to' section 7106(b)." National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 390 (1995). Therefore, Respondent's right "to hire" and "with respect to filling positions, to make selections for appointments" does not preclude it from negotiating, pursuant to section 7106(b) "(2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials."

The test established by the Authority in Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 408 (1986) to determine whether a change has more than a de minimis impact on unit employees and requires impact and implementation bargaining involves consideration of "the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees." U.S. Equal Employment Opportunity Commission, 40 FLRA 1147, 1156 (1991). Term appointments had never previously been used to fill positions in the Charging Party's bargaining unit. After two years, the examiners appointed for two-year terms would be summarily released, or, if Respondent decided to make the temporary program permanent, as was possible, they would have to compete for the permanent positions. Job performance as temporary employees would obviously be of some significance to management in making selections for permanent positions. Consequently, the use of term appointments gave rise to potential job retention consequences for the term employees which were reasonably foreseeable. As noted, the Charging Party sought to negotiate over post-hiring procedural matters affecting those positions, such as notice of, and an opportunity to reply to, performance deficiencies.

Accordingly, the impact of Respondent's decision to use term appointments in the bargaining unit was more than de minimis, and Respondent violated section 7116(a)(1) and (5) by refusing to negotiate with the Union over the impact and implementation of its decision. Cf. Federal Deposit Insurance Corporation, Washington,D.C., 48 FLRA 313 (1993)(FDIC), petition for review denied sub. nom. FDIC v. FLRA, No. 93-1694 (D.C. Cir., December 12, 1994)(unpublished opinion)(bargaining required regarding procedures and appropriate arrangements concerning the nonrenewal of temporary liquidation graded employees).

F.Respondent's Good Faith Belief As To The Propriety Of Its Action Does Not Preclude The Finding Of An Unfair Labor Practice

Respondent contends that it cannot be found to have refused to negotiate in good faith with the Union because it believed in good faith that its decision to hire new examiners for term appointments was a matter that did not affect bargaining unit members, was within its exclusive management rights under section 7106(a), and that no bargaining was being requested by the Union's June 20 memorandum.

Specific evidence of an intent by Respondent to evade or frustrate its bargaining obligation is not required since intent is not an element of a section 7116(a)(5) violation. Marine Corps Logistics Base, Barstow, California, 33 FLRA 196, 202 (1988); Internal Revenue Service, 16 FLRA 904, 922 (1984). Respondent's "belief" is, therefore, irrelevant. The legal consequences of its conduct have been treated herein.

Based on the above findings and conclusions, it is recommended that the Authority issue the following Order, modeled after the remedy discussed and afforded by the Authority in FDIC, 48 FLRA at 329-31, and which will effectuate the purposes of the Statute under the circumstances:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the U.S. Department of Commerce, Patent and Trademark Office, shall:

1. Cease and desist from:

(a) Failing and refusing to bargain with the Patent Office Professional Association, the exclusive representative of an appropriate unit of employees, over the impact and implementation of the decision of the Patent and Trademark Office to use term appointments in hiring patent examiners in the bargaining unit represented by such exclusive representative.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Bargain with the Patent Office Professional Association to the extent consistent with the Statute over the impact and implementation of the decision of the Patent and Trademark Office to use term appointments in hiring patent examiners and apply agreements reached pursuant to such negotiations retroactively to February 24, 1994.

(b) Based upon agreements reached pursuant to negotiations, make whole any bargaining unit employee for any losses suffered by such employee because of the failure to provide the Patent Office Professional Association prior notice and an opportunity to bargain over procedures to be observed in connection with the decision to use term appointments in hiring patent examiners and appropriate arrangements for affected employees.

(c) Post at the U.S. Department of Commerce, Patent and Trademark Office in Crystal City, Virginia, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Assistant Commissioner for Patents and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other placed where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Washington Region, Federal Labor Relations Authority in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, July 9, 1996

GARVIN LEE OLIVER

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the the U.S. Department of Commerce, Patent and Trademark Office violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify our employees that:

WE WILL NOT fail and refuse to bargain with the Patent Office Professional Association, the exclusive representative of an appropriate unit of our employees, over the impact and implementation of our decision to use term appointments to hire certain patent examiners in the bargaining unit represented by such exclusive representative.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL bargain with the Patent Office Professional Association over the impact and implementation of our decision to use term appointments in hiring patent examiners to the extent consistent with the Statute, and we will apply agreements reached pursuant to such negotiations retroactively to February 24, 1994.

WE WILL, based upon agreements reached pursuant to negotiations, make whole any bargaining unit employee for any losses suffered by such employee because of our failure to provide the Patent Office Professional Association prior notice and an opportunity to bargain over procedures to be observed in connection with our decision to use term appointments in hiring patent examiners and appropriate arrangements for affected employees.

_____________________________

(Activity)

Date:_____________ By: _________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Region, 1255 22nd Street, NW, Suite 400, Washington, DC 20037-1206, and whose telephone number is: (202) 653-8500.




FOOTNOTES:


Authority's Footnotes Follow:

1. Member Wasserman's opinion, dissenting in part, is set forth at the end of this decision.

2. Executive Order 12871 is reproduced in its entirety in Appendix I to this decision.

3. The other parties directed to provide written responses were those in Department of the Air Force, 647th Air Base Group, Hanscom Air Force Base, Massachusetts, Case No. BN-CA-41011; U.S. Department of Justice, Immigration and Naturalization Service, Case No. WA-CA-50048; Social Security Administration, Santa Rosa District Office, Santa Rosa, California, Case No. SF-CA-50155; and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, Case No. CH-CA-50399. Briefs were timely filed by all parties in these cases except the Social Security Administration, whose brief was not timely filed and, therefore, has not been considered. In addition, the National Association of Government Employees, the Charging Party in Case Nos. BN-CA-41011 and CH-CA-50399, filed a brief in connection with CH-CA-50399 only.

4. By notice published in the Federal Register, other interested persons were invited to file briefs as amicus curiae. 62 Fed. Reg. 62315 (1997). In response to the notice, briefs were timely filed by: (1) Office of Personnel Management; (2) Department of the Interior; (3) American Federation of Government Employees, AFL-CIO and the Public Employee Department of the American Federation of Labor-Congress of Industrial Organizations (jointly); (4) Association of Civilian Technicians; (5) National Air Traffic Controllers Association; (6) National Treasury Employees Union; (7) Senior Executives Association; and (8) Professional Airways Systems Specialists. The amicus curiae brief from the Department of Transportation was not timely filed and, therefore, has not been considered.

5. These questions are set forth in the Appendix II to this decision. The Authority's procedural order also invited parties in this and the companion cases to request oral argument before the Authority. No requests for oral argument were received.

6. The General Counsel relies on Section 4 of the Guidance, which states, in pertinent part:

Under Executive Order 12871, bargaining over the subjects set forth in 5 U.S.C. § 7106(b)(1) is now mandatory, and a failure by agency managers to engage in such bargaining would be inconsistent with the President's directive.

Guidance for Implementing Executive Order 12871, Office of Personnel Management (December 16, 1993) (hereinafter "Guidance.").

7. The issues involved in the companion cases and the parties' positions regarding them will be described and addressed in more detail in the decisions in those cases.

8. Briefs were timely filed by the American Federation of Government Employees, representing the Charging Parties in Case Nos. WA-CA-50048 and SF-CA-50155, and the National Association of Government Employees, representing the Charging Party in Case No. CH-CA-50399.

9. Briefs were timely filed by the Department of the Air Force, the Respondent in Case No. BN-CA-41011; the Department of Justice, the Respondent in Case No. WA-CA-50048; and the Department of Veterans Affairs, the Respondent in Case No. CH-CA-50399.

10. These briefs were timely filed by the Association of Civilian Technicians; the National Air Traffic Controllers Association; the National Treasury Employees Union; and the Professional Airways Systems Specialists, NMEBA, AFL-CIO.

11. These briefs were filed by the Office of Personnel Management, the National and Denver Offices of the Department of the Interior, and the Senior Executives Association.

12. This regulatory provision was amended in 1997. With respect to the General Counsel's burden of proof, the regulation in effect prior to 1997, 5 C.F.R. § 2423.18, was substantively identical to the revised regulation.

13. In this regard, an examination of the briefs in this case demonstrates that, in addition to the "vigorous[] dispute" over "whether the President . . . has exercised the Respondent's discretion" to bargain over its decision to use term appointments, Department of Commerce, 53 FLRA at 870, there is a vigorous dispute over identifying the issues to be decided and the order in which they should be addressed. The General Counsel and the unions focus, in the main, on the extent of Presidential authority to make an election to bargain under the Statute. These parties emphasize that the complaints contest the lawfulness of respondents' conduct under the Statute. Seee.g., General Counsel's Brief at 3 ("These cases are not about whether the Executive Order creates any rights and duties independent of the Statute."); Charging Party's Brief at 1 ("The right for this review before the Authority comes from [the Statute], rather than via the Executive Order."). The primary focus of the Respondents, in contrast, is on the fact that the source of the alleged election to bargain is an executive order and the argument that Executive Order 12871 is not enforceable in an unfair labor practice proceeding. See, e.g., Respondent's Brief at 35 ("Well settled case law belies any argument that the Authority somehow has enforcement authority regarding compliance with Executive Order 12871.").

14. Although the Respondent does not dispute the Authority's analysis of what constitutes "numbers, types, and grades," within the meaning of section 7106(b)(1), it asserts that it did not contemplate that its decision constituted the exercise of a right under that section. See Respondent's Brief at 11 n.21 (the Respondent "believed that its decision to hire patent examiners using term appointments was a matter reserved to management under section 7106(a)(2)(A) of the Statute[]" and, "[a]ccordingly, it never reached the issue of whether to negotiate pursuant to section 7106(b)(1)."). The Respondent also argues that it is unclear how the Authority could make a conclusion regarding section 7106(b)(1) in view of the fact that the Union never offered proposals for bargaining. See id. at 27-28. However, as the Partial Decision and Order makes clear, the Authority determined that the Respondent's "decision to hire new examiners under term appointments" was encompassed by section 7106(b)(1) . . . ." Department of Commerce, 53 FLRA at 870 (emphasis added). Determining whether a decision constitutes the exercise of a management right under section 7106 does not depend on whether, at the time of the decision, the union offers proposals or what such proposals are. See U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and U.S. Department of Justice, Immigration and Naturalization Service, Portland, Maine District Office, Portland, Maine and Immigration Service, St. Albans Sub-Office, St. Albans, Vermont, 43 FLRA 241, 246, 250-51 (1991) (Authority rejected respondents' argument that because no union proposals had been submitted, the judge erred in determining whether respondent's change in conditions of employment was within duty to bargain; Authority held that "it is not necessary for there to be a negotiability dispute . . . for the Authority to determine whether an agency's action is subject to the duty to bargain.") (citations omitted).

15. The Respondent asserts, in this connection, that it is "absurd to believe that Congress wanted labor and management to present disputes for adjudication when the end result, if the union prevails, is to dismiss the dispute." Respondent's Brief at 25 n.27. Insofar as this assertion is intended as an argument that the Authority lacks jurisdiction to resolve a dispute over when a matter is encompassed by section 7106(a) or section 7106(b)(1), we reject the argument for the reasons stated in American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1489-90 (1997). Further, a finding that a matter is encompassed by section 7106(b)(1) has a valid purpose. Among other things, finding that a union proposal is encompassed by section 7106(b)(1) informs agencies and unions that an agreement on the proposal may not be disapproved under section 7114(c) of the Statute. See National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA 56, 62 (1986) (Blue Ridge Parkway).

16. Our examination of the precise wording used in the Executive Order is consistent with the Authority's approach to resolving other unfair labor practice complaints involving directions by superior agency officials to their subordinates. For example, in determining whether higher-level management has unlawfully interfered in a lower-level bargaining relationship by directing action inconsistent with the Statute, the Authority examines, among other things, the precise words used to convey higher-level management's instructions. See, e.g., U.S. Department of the Interior, Washington, D.C. and U.S. Geological Survey, Reston, Virginia, 52 FLRA 475, 482 (1996) ("the fact that Interior provided advice to Survey does not establish that Interior directed Survey to act in a particular manner or to refrain from taking any action in fulfillment of its bargaining obligations."); U.S. Department of Health and Human Services, Public Health Service and Centers for Disease Control, National Institute for Occupational Safety and Health, Appalachian Laboratory for Occupational Safety and Health; 39 FLRA 1306, 1316 (1991) (Authority found it clear from wording of letter that higher-level respondent directed lower-level to repudiate an agreement).

17. Several of the briefs before us assert that Section 2(d) was not intended to encompass traditional "bargaining" and that, instead, discussions in a nonadversarial setting only were contemplated by that section. See, e.g., OPM Brief at 3. In view of our determination that Section 2(d) does not constitute an election under the Statute, we do not address this assertion.

18. Contrary to our dissenting colleague's suggestion, we are not finding that the President "divorced" the direction to bargain in Section 2(d) of the Executive Order from the Statute. Dissenting Opinion, Slip op. at 40. That Section 2(d) does not itself constitute an election under the Statute does not mean that the Section does not anticipate that agencies would make an election under the Statute.

19. We note, as we did in Department of Commerce, the "ample precedent" holding that Executive Order requirements are not judicially enforceable. 53 FLRA at 875 and n.14. Although the General Counsel points out that the precedent cited by the Authority in Department of Commerce did not include cases brought by a public prosecutor, the General Counsel does not explain why that fact would affect the applicability of that precedent.

20. Unlike our dissenting colleague, we are not persuaded that Section 3 can reasonably be interpreted as merely preventing "individuals or parties from enforcing the Order in court or in arbitration." Dissenting Opinion, Slip op. at 44. In addition to the reasons explained above why the import of Section 3 must be taken into account in construing Section 2(d), this interpretation does not account for the reference in Section 3 to "administrative review."

21. No direct evidence of the President's intent in issuing the Executive Order has been presented in this or any of the companion cases.

22. We agree with our dissenting colleague that OPM has particular statutory responsibilities in connection with personnel management in the Federal Government, as well as responsibilities to provide certain facilities, support, and administrative services under the Executive Order. See 5 U.S.C. § 1103; Executive Order 12871, Section 1(c)(3). There is, however, no suggestion in the record that these responsibilities extend to interpretation of the Executive Order.

23. We similarly question the probative value of the testimony by the Respondent's former Director of Human Resources and articles published in several newspapers, cited in the dissent. There is no basis on which to conclude that these sources can establish what the President intended when he issued the Executive Order. Moreover, with respect to the "quid pro quo" intent suggested in the dissent as establishing the meaning of Section 2(d), we find absolutely no basis in the record to support this view. In this connection, there is no evidence or assertion that Section 2(d) constitutes a contract or quasi-contract that is enforceable through unfair labor practice proceedings. There also is no assertion that the issuance of the Executive Order in general, or Section 2(d) in particular, was the product of a "trade-off" -- with Federal unions or the President taking actions with respect to downsizing or changing the nature of Federal labor-management relations for the reasons posited in the dissent. However, even if our dissenting colleague's view of what transpired were correct, it would not provide any basis for construing the President's clear direction to agency heads to bargain over section 7106(b)(1) subjects as an enforceable election under the Statute. As described supra, Section IV.B.1, the fact that the direction in Section 2(d) is mandatory does not necessarily make it a statutory election.

24. We decline the General Counsel's request that we seek an advisory opinion from the Office of Personnel Management concerning the meaning of Section 2(d). OPM has made known its views on this precise question, in this proceeding, by stating that "[t]he Presidential act of issuing the internal directive ordering executive agencies to bargain section 7106(b)(1) issues does not, itself, constitute the election it mandates." OPM Brief at 5. There is no indication that the interpretation OPM asserts in its brief does not represent the considered position of the agency head on this issue. See FLRA v. U.S. Department of Treasury, Financial Management Service, 884 F.2d 1446, 1455 (D.C. Cir. 1989).

25. Close to one-half of the 3,709 respondents to a survey conducted for the NPC in 1996 responded that their partnerships were handling such issues. See NPC 1996 Report at D-2, D-6, D-16. The analysis of this survey states that "responses are generalizable to the entire population of partnership participants." Id. at D-3. A similar percentage of respondents to an NPC survey in 1995 indicated that this also was the case at that time. See NPC 1995 Report at 12. Unlike our dissenting colleague, we do not pass judgement here on whether these surveys describe a glass that is half empty or half full.

26. The percentage of respondents to the NPC 1996 survey reporting that such issues were being handled by their partnerships are as follows: budget and staffing -- 42 percent; reorganization -- 53 percent; reengineering/redesign -- 40 percent. NPC 1996 Report at 15.

27. Our decision does not address, and should not be read to call into question the enforceability of, agreements to bargain over section 7106(b)(1) subjects.

28. We note, in this regard, that the question of the extent or nature of the duty to bargain during the period of an election under section 7106(b)(1) appears to be one of first impression. Unlike our dissenting colleague, we find little, if any, assistance in resolving this question in the text of, or decisions construing, various State labor-relations statutes that do not contain wording similar to the Statute.


Opinion of Member Wasserman Footnotes Follow:

1. I see that the majority, too, has looked beyond the words of the Order to support its position. For example, my colleagues refer to National Partnership Council Reports in their attempt to counter the General Counsel's arguments pertaining to the impact of Section 3 of the Order on the contention that Section 2(d) constitutes an election. Slip op., infra at 27-28. Likewise, they state that Section 2(d) "anticipates that agencies will make a statutory election", Id. at 19, which recognizes a meaning beyond the "precise words." This approach comports with my own, and is supported by the Supreme Court's statement that the interpretation of a statute is guided by the law in its entirety, as well as "its object and policy." Supra at 20, citing John Hancock Mutual Life Insurance Co. v. Harris Trust & Savings Bank, 510 U.S. 86, 94-95 (1993) (citation omitted; emphasis added).

2. In addition to reflecting the President's intent, the quid pro quo aspect of the Executive Order shows the existence of a contract or quasi-contract. The construction or interpretation of a contract is the determination of the meaning attached to the words "written or spoken" which make the contract. See 17A Am. Jur. 2d Contracts § 336. The construction of words and of other manifestations of intention forming an agreement is the process of divining from such manifestations what must be done or forborne by the respective parties in order to conform to the terms of the agreement. Id. In this case, the President agreed to bargain permissive subjects. The Authority has recognized that an agency can agree to become contractually bound to bargain permissive subjects, and at least one Respondent concedes this. VAMC Brief at 4.

3. Even if one were to reject the argument that Section 2(d) of the Executive Order is an election to bargain, it can be viewed as a constructive election. The Authority has found "constructive declarations of non-negotiability" through agency inaction. See, e.g., National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Dept. of Defense, Dept. Of Defense Domestic Dependents, Elementary and Secondary Schools, Fort, Bragg, North Carolina, 53 FLRA 898, 901-01 (1997). As pointed out by the General Counsel, none of the Respondents have stated that they refuse to follow the President's Order. In fact, in the lead case, PTO states that any failure to follow the order was "inadvertent." Respondent's Exceptions at 3.

4. The President stated in his Order that the Partnership Council should operate pursuant to the Federal Advisory Committee Act, as amended. E.O. 12871 citing, 5 U.S.C. App. 2.

5. For example, OPM may intervene in MSPB appeals and frequently issues government-wide personnel initiatives. In addition, Section 1(c)(3) of the Executive Order specifies OPM's administrative role in connection with the Partnership Council, and it is well known that OPM houses the Center for Partnership and Labor-Management Relations. Although the majority attempts to characterize OPM's guidance as consistent with the majority's view of the Executive Order, it dismisses the importance of OPM's views because there is "no suggestion in the record that these responsibilities extend to interpretation of the Executive Order." Supra at 23, n.22. I doubt whether OPM would have issued government-wide guidance if it had no responsibility to do so. Moreover, there is no evidence that OPM's interpretation and advice were repudiated by the President or the agencies at the time of issuance. Thus, the fact that the guidance was not issued contemporaneously with the Order does not dilute its significance, as the majority suggests. Supra at 23-24.

6. In light of OPM's having provided us with its current view through its brief in this case, I agree with the majority that we need not seek an advisory opinion, as requested by the General Counsel.

7. I note that it is questionable whether the "unitary executive" theory applies to independent agencies, since presidential authority over those agencies is limited. Because neither this nor the related cases before us involves an independent agency, I do not need to address that question.

8. Contrary to the view expressed by the majority in note 28, supra, I believe that state and local government bargaining provides useful analogies because of the commonality of taxpayer financial support and the need for effective and efficient government service arising from that public support. State and local collective bargaining laws are nearly uniform in their expression of paramount concern for the public interest, just as Congress expressed in Section 7101 of the Statute.

9. While the Executive Order precludes administrative enforcement of its terms, I concur with the majority that "Section 3 would not deprive an election under section 7106(b)(1) of its effect under the Statute, or deprive the Authority of jurisdiction over this claim." Supra at 22. Since I think that Section 2(d) constitutes an election, Section 3 does not bar enforcement of the election through unfair labor practice proceedings. The "creation" of rights occurred through the Statute, not the Executive Order.




ALJ's Footnotes Follow:

1. The erroneous personnel documents were apparently the ones that had been drafted during consideration of the apprentice program that was not adopted by management.

2. Colleen Woodward, then Respondent's Director of Human Resources, testified that she may have contacted Mr. Stern or someone else in the Union to explain the vacancy announcement error, but could not recall when. Ms. Woodward's memorandum to the Union of August 20, 1994 does not specify any such discussions prior to early July 1994. Mr. Stern did not recall ever receiving an explanation prior to July 19, 1994. I credit Mr. Stern's testimony in this respect.

3. Ms. Woodward testified that a "new program" was something that was "very different from something that had occurred before" and that this was not a "new program." But she also testified that from her dealings with Mr. Stern, she believed Mr. Stern would have considered the hiring of examiners under term appointments to be "very different." (Tr. 107-108).

4. As noted, the complaint alleges in paragraph 10(h), "Since on or about