American Federation of Government Employees, Council 147, AFL-CIO v. FLRA, 204 F.3d 1272 (9th Cir. 2000)

No. 98-70912

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

_______________________________

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 147,
                    Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                    Respondent

and

SOCIAL SECURITY ADMINISTRATION, SANTA ROSA
DISTRICT OFFICE, SANTA ROSA, CALIFORNIA,
                    Intervenor
_______________________________



ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY



BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY



              DAVID M. SMITH
                Solicitor

              WILLIAM R. TOBEY
                Deputy Solicitor

              ANN M. BOEHM
                Attorney


              Federal Labor Relations
                Authority
              607 14th Street, N.W.
              Washington, D.C.  20424
              (202) 482-6620




TABLE OF CONTENTS

STATEMENT OF JURISDICTION  1

STATEMENT OF THE ISSUE  2

STATEMENT OF THE CASE  2

I.  Nature of the Case  2

II.  Background  4

A.  The Federal Service Labor-Management Relations
Statute and Executive Order No. 12871  4

1.  The Statute  4

2.  Executive Order No. 12871  6

STATEMENT OF THE FACTS  7

I.  Factual Background  7

II.  The Authority's Decision  8

III.  The Commerce II decision  9

A.  The language of Section 2(d)  9

B.  The purpose of the Executive Order  10

C.  The impact of Section 3 of the Executive Order  11

D.  Office of Personnel Management Guidance  13

E.  Giving meaning to the Executive Order  14

STANDARD OF REVIEW  14

SUMMARY OF ARGUMENT  15

ARGUMENT  18

THE AUTHORITY PROPERLY DETERMINED THAT THE AGENCY'S REFUSAL
TO NEGOTIATE OVER A 5 U.S.C. § 7106(b)(1) MATTER WAS NOT AN
UNFAIR LABOR PRACTICE BECAUSE SECTION 2(d) OF EXECUTIVE
ORDER NO. 12871 DOES NOT CONSTITUTE A STATUTORY "ELECTION"
TO BARGAIN UNDER 5 U.S.C. § 7106(b)(1)  18

A.  The plain language of the Executive Order
indicates that it was not intended to create
an enforceable "election" to bargain under
section 7106(b)(1) of the Statute  20

B.  The purpose and intent of the Executive Order
demonstrate that Section 2(d) should not be
construed as making an "election" to bargain
under section 7106(b)(1) of the Statute  23

C.  Executive Order Section 3 confirms that
Section 2(d) is not an "election" to bargain
under section 7106(b)(1) of the Statute  25

CONCLUSION  30

CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT
RULE 32(E)(14), FORM OF BRIEF  31



ADDENDUM

Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135
(1994 & Supp. II 1996)  A-1



TABLE OF AUTHORITIES

AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998)  14

AFGE, Local 2987 v. FLRA, 775 F.2d 1022 (9th Cir. 1985)  15

Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
  (1983)  4, 15

California Nat'l Guard v. FLRA, 697 F.2d 874
  (9th Cir. 1983)  4, 5

Chen v. Carroll, 866 F. Supp. 283 (E.D. Va. 1994)  21

Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995)  28

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
  Inc., 467 U.S. 837 (1984)  15, 19

Department of the Treasury v. FLRA, 837 F.2d 1163
  (D.C. Cir. 1988)  15

Department of Veterans Med. Ctr. v. FLRA, 16 F.3d 1526
  (9th Cir. 1994)  15

John Hancock Mut. Life Ins. Co. v. Harris Trust & Savings
  Bank, 510 U.S. 86 (1993)  23

Old Dominion Branch No. 496, National Association of Letter
  Carriers v. Austin, 418 U.S. 264 (1974)  22, 28

Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769
  (D.C. Cir. 1988)  15

South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498
  (1986)  12, 27

Utley v. Varian Assoc., Inc., 811 F.2d 1279
  (9th Cir. 1987)  23, 27, 28

West Point Elementary Sch. Teachers Assn v. FLRA,
  855 F.2d 936 (2d Cir. 1988)  15

Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995)  28

U.S. Dep't of Interior, Bur. of Indian Affs. v. FLRA,
  887 F.2d 172 (9th Cir. 1989)  4



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

National Association of Government Employees, Local R5-184
  and U.S. Department of Veterans Affairs, Medical Center,
  Lexington, Kentucky, 51 FLRA 386 (1995)  6

American Federation of State, County, and Municipal
  Employees, Local 3097 and U.S. Department of Justice,
  Justice Management Division, 42 FLRA 412 (1991)  27

U.S. Department of Commerce, Patent and Trademark Office,
  53 FLRA (No. 70) 858 (Nov. 17, 1997)  3, 6, 18, 19

U.S. Department of Commerce, Patent and Trademark Office,
  54 FLRA (No. 43) 360 (June 19, 1998), petition for
  review filed, Patent Office Profissional Assoc. v.
  FLRA, No. 98-1377 (D.C. Cir. Aug. 17, 1998)  passim



FEDERAL STATUTES

Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996)  1
  5 U.S.C. § 7103(a)(12)  5
  5 U.S.C. § 7103(a)(14)  5
  5 U.S.C. § 7105(a)(1)  4
  5 U.S.C. § 7105(a)(2)  4
  5 U.S.C. § 7105(a)(2)(G)  1
  5 U.S.C. § 7105(a)(2)(I)  4
  5 U.S.C. § 7106(a)  5, 6, 8
  5 U.S.C. § 7106(a)(1)  5
  5 U.S.C. § 7106(a)(2)(A)  5
  5 U.S.C. § 7106(a)(2)(B)  6
  5 U.S.C. § 7106(b)  8
  5 U.S.C. § 7106(b)(1)  passim
  5 U.S.C. § 7106(b)(2)  7
  5 U.S.C. § 7106(b)(3)  7
  5 U.S.C. § 7114(b)(2)  5
  5 U.S.C. § 7114(b)(5)  5
  5 U.S.C. § 7116(a)(1)  2, 5, 7
  5 U.S.C. § 7116(a)(5)  2, 5, 7
  5 U.S.C. § 7117(a)  5
  5 U.S.C. § 7117(a)(1)  27
  5 U.S.C. § 7119  5
  5 U.S.C. § 7123  26
  5 U.S.C. § 7123(a)  1, 2
  5 U.S.C. § 7123(c)  14, 19
  5 U.S.C. § 706(2)(A)  15, 20

Executive Order No. 11491 § 4, 3 C.F.R. (1969 Comp.) at 191,
  reprinted in 5 U.S.C. § 7101 note (1994)  22

Executive Order No. 12564, 3 C.F.R. (1986 Comp.) at 224,
  reprinted in 5 U.S.C. § 7301 note (1994)  27

Executive Order No. 12871, 3 C.F.R. (1993 Comp.) at 655,
  reprinted in 5 U.S.C. § 7101 note (1994)  passim
  § 2(d)  passim
  § 3  passim

Executive Order No. 12983, 60 Fed. Reg. 66,855 (1995)  29



MISCELLANEOUS

Clinton Order to Agency Heads Not Enforceable by FLRA,
  Panel Rules, Government Employee Relations Report,
  Vol. 36, No. 1770, at 725 (June 29, 1998)  26

Office of Personnel Management's December 16, 1993
  Guidance   13, 19

Sutherland Statutory Construction § 31.06
  (5th ed. Supp. 1998)  11, 23




IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 98-70912

_______________________________

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 147,
                            Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                            Respondent

and

SOCIAL SECURITY ADMINISTRATION, SANTA ROSA
DISTRICT OFFICE, SANTA ROSA, CALIFORNIA,
                            Intervenor
_______________________________



ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY



BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY



STATEMENT OF JURISDICTION

  The decision and order under review in this case was issued by the Federal
  Labor Relations Authority ("FLRA" or "Authority") in Social Security
  Administration, Santa Rosa District Office, Santa Rosa, California, 54 FLRA
  (No. 45) 444 (June 19, 1998); Record Excerpts (RE) 4.  The Authority
  exercised jurisdiction over the case pursuant to section 7105(a)(2)(G) of
  the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§
  7101-7135 (1994 & Supp. II 1996) (Statute).[1]
  This Court has jurisdiction to review the Authority's final decisions and
  orders pursuant to section 7123(a) of the Statute.  Petitioner American
  Federation of Government Employees, AFL-CIO, Council 147 ("AFGE" or
  "petitioner" or "the union") filed a petition for review within the 60-day
  time limit provided by section 7123(a) of the Statute.

STATEMENT OF THE ISSUE

  Whether the Authority properly determined that the agency's refusal to
  negotiate over a 5 U.S.C. § 7106(b)(1) matter was not an unfair labor
  practice because Section 2(d) of Executive Order No. 12871 does not
  constitute a statutory "election" to bargain under 5 U.S.C. § 7106(b)(1).

STATEMENT OF THE CASE

I.  Nature of the Case

  This case arose as an unfair labor practice (ULP) proceeding concerning
  allegations that the refusal by the Social Security Administration, Santa
  Rosa District Office, Santa Rosa, California ("SSA" or the "agency") to
  bargain over its decision to move a bargaining unit employee violated
  section 7116(a)(1) and (5) of the Statute.  54 FLRA at 445-46; RE 5-6.
  Specifically, the ULP complaint alleged that Executive Order No. 12871[2]
  constituted an "election," on behalf of the agency, to negotiate over
  matters within section 7106(b)(1) of the Statute,[3] and because moving an
  employee is such a matter, the agency was obligated to bargain before making
  such a decision.  54 FLRA at 446; RE 6.
  The Authority, basing its conclusion on the reasoning set forth in U.S.
  Department of Commerce, Patent and Trademark Office, 54 FLRA (No. 43) 360
  (June 19, 1998), petition for review filed, Patent Office Professional
  Assoc. v. FLRA, No. 98-1377 (D.C. Cir. Aug. 17, 1998) (Commerce II); RE
  B1,[4] found that the agency did not commit a ULP.  54 FLRA at 448-49; RE
  8-9.  Although it confirmed that the employee's move was a section 7106(b)
  (1) matter subject to negotiation "at the election of the agency," the
  Authority determined that Executive Order No. 12871 is an Executive Branch
  internal management direction and not an "election" to bargain under section
  7106(b)(1).  Id.  Therefore, the agency was not required by the Statute to
  bargain with the union over the decision to move the employee.  54 FLRA at
  449; RE 9.

II.  Background

  A.  The Federal Service Labor-Management Relations Statute and Executive
  Order No. 12871
1.  The Statute
  The Statute governs labor-management relations in the federal service.
  Under the Statute, the responsibilities of the Authority include
  adjudicating unfair labor practice complaints, negotiability disputes,
  bargaining unit and representation election matters, and resolving
  exceptions to arbitration awards.  See 5 U.S.C. § 7105(a)(1), (2); see also
  Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 93 (1983)
  (BATF).  The Authority thus ensures compliance with the statutory rights and
  obligations of federal employees, labor organizations that represent such
  federal employees, and federal agencies.  The Authority is further empowered
  to take such actions as are necessary and appropriate to effectively
  administer the Statute's provisions.  See 5 U.S.C. § 7105(a)(2)(I); BATF,
  464 U.S. at 92-93; U.S. Dep't of Interior, Bur. of Indian Affs. v. FLRA, 887
  F.2d 172, 173 (9th Cir. 1989).
  The Authority performs a role analogous to that of the National Labor
  Relations Board (NLRB) in the private sector.  See BATF, 464 U.S. at 92-93.
  Congress intended the Authority, like the NLRB, "to develop specialized
  expertise in its field of labor relations and to use that expertise to give
  content to the principles and goals set forth in the [Statute]."  BATF, 464
  U.S. at 97.  See California Nat'l Guard v. FLRA, 697 F.2d 874, 876 (9th Cir.
  1983) (Calif. Guard).
  Under the Statute, an agency must bargain in good faith with the exclusive
  representative of an appropriate bargaining unit about unit employees'
  conditions of employment, and upon the request of either party, execute a
  document embodying the agreed upon terms.  See 5 U.S.C. §§ 7103(a)(12),
  7114(b)(2), 7114(b)(5).  The Statute defines "conditions of employment" as
  "personnel policies, practices, and matters, whether established by rule,
  regulation, or otherwise, affecting working conditions."  5 U.S.C. § 7103(a)
  (14).  If good faith negotiations result in an impasse, the impasse may be
  referred to the Federal Service Impasses Panel for resolution.  See 5 U.S.C.
  § 7119.  The Statute further provides that it is a ULP for a federal agency
  employer to, among other things, "interfere with, restrain, or coerce any
  employee in the exercise by the employee of any right under [the Statute],"
  or to refuse to "negotiate in good faith."  5 U.S.C. § 7116(a)(1) and (5).
  There is no duty to bargain, however, over proposed contract language that
  would bring about an inconsistency with a federal law, government-wide rule
  or regulation, or an agency regulation for which a "compelling need" exists.
  5 U.S.C. § 7117(a); see California Guard, 697 F.2d at 879.  There also is no
  duty to bargain over proposed contract language regarding the management
  rights set forth in section 7106(a) of the Statute.  5 U.S.C. § 7106(a).
  Examples of these rights include the right to determine the mission of the
  agency, 5 U.S.C. § 7106(a)(1); the right to hire, 5 U.S.C. § 7106(a)(2)(A);
  the right to assign work, 5 U.S.C. § 7106(a)(2)(B); and the right to
  "determine the personnel by which agency operations shall be conducted," id.
  The instant case involves 5 U.S.C. § 7106(b)(1), which is recognized as an
  exception to the management rights set forth in section 7106(a).  See
  Commerce II, 54 FLRA at 374; RE B15; see also National Association of
  Government Employees, Local R5-184 and U.S. Department of Veterans Affairs,
  Medical Center, Lexington, Kentucky, 51 FLRA 386, 393 (1995).  Matters
  arising under section 7106(b)(1)--"the numbers, types, and grades of
  employees or positions assigned to any organizational subdivision," 5 U.S.C.
  § 7106(b)(1)--are recognized as "permissive" subjects of bargaining.
  Commerce I, 53 FLRA at 870.  "[A]n agency may elect to, but absent an
  election is not required to, bargain about section 7106(b)(1) subjects."
  Id.
  2.  Executive Order No. 12871
  In 1993, President Clinton issued Executive Order No. 12871.  The Executive
  Order provides, inter alia, that "[t]he head of each agency subject to the
  provisions of [the Statute] . . . shall . . . negotiate over the subjects
  set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do
  the same . . . ."  Executive Order No. 12871 § 2(d); RE B49-50.  The
  Executive Order further provides that the 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."  Id. § 3;
  RE B50.  The impact of Section 2(d) of the Executive Order on section
  7106(b)(1), and the enforceability of the Order through the ULP provision of
  the Statute, are at issue in this case.

STATEMENT OF THE FACTS

I.  Factual Background

  At the employee's request, the agency moved a bargaining unit employee from
  one work unit of the Santa Rosa District Office to another.  54 FLRA at 445;
  RE 5.  The work of the two units differed in some minor respects, but the
  similarities were such that the move had no effect on the employee's job
  title, tour of duty, shift, work area, or work equipment.  Id.
  Prior to the move, the union president requested that the decision to move
  the employee be subject to negotiation based upon section 7106(b)(1) and
  Executive Order No. 12871.  54 FLRA at 445-46; RE 5-6.  The agency agreed to
  bargain over the impact and implementation of the decision to move the
  employee, pursuant to section 7106(b)(2) and (3) of the Statute, but the
  union declined to make any proposals in that area.  The agency determined
  not to bargain over the actual decision to move the employee--the section
  7106(b)(1) matter.  54 FLRA at 446; RE 6.
  The FLRA's General Counsel issued a ULP complaint alleging that the
  President, through Executive Order No. 12871, exercised the agency's
  discretion to negotiate under section 7106(b)(1) and, therefore, the agency
  was obligated to bargain.  As a result, the General Counsel contended that
  the agency violated section 7116(a)(1) and (5) by refusing to bargain over
  the decision to move the unit employee from one work unit to another.  Id.
  The Administrative Law Judge (ALJ) confirmed that the decision to move the
  employee was a section 7106(b)(1) matter, and thus it was within the
  agency's discretion to decide whether to negotiate with the union.  The ALJ
  then concluded that the agency did not elect to negotiate with the union.
  Id.  In so finding, the ALJ determined that the President did not exercise
  the agency's discretion to elect to bargain through the issuance of
  Executive Order No. 12871.  54 FLRA at 446-67; RE 6-7.  The ALJ therefore
  recommended that the Authority dismiss the ULP complaint.  54 FLRA at 447;
  RE 7.

II.  The Authority's Decision

  The Authority agreed with the ALJ that the complaint should be dismissed.
  54 FLRA at 449; RE 9.  As relevant here, the Authority viewed its decision
  to that effect as "governed" by its holding in Commerce II that Section 2(d)
  of Executive Order No. 12871 does not constitute an "election" to negotiate
  under section 7106(b)(1).[5]  54 FLRA at 448; RE 8.
  As found in Commerce II and discussed in more detail below, the Authority
  concluded that Section 2(d) "'unambiguously states [that it is] a
  direction,'" not a statutory "election", "'by the President to agency
  officials to engage in bargaining over [the] subjects defined in the
  Statute.'"  Id. (quoting Commerce II, 54 FLRA at 387).  The Authority
  further held that construing Section 2(d) as an "internal management
  direction" is also necessitated by Section 3's language barring judicial and
  administrative review of the Executive Order.  Id.  According to the
  Authority, "[t]he fact that the nature of the Executive Order's direction is
  indeed mandatory does not . . . render it a statutory election enforceable
  in an unfair labor practice proceeding." 54 FLRA at 448-49; RE 8-9.  Based
  upon this analysis, the Authority held that the agency was not required to
  bargain with the union in this case and therefore dismissed the
  complaint.[6]  54 FLRA at 449; RE 9.

III.  The Commerce II Decision

  As indicated above, in the instant case the Authority relied upon Commerce
  II's holding regarding the impact of Executive Order No. 12871 on section
  7106(b)(1) of the Statute.  In Commerce II, the Authority concluded that the
  President's direction to agencies to negotiate over matters within section
  7106(b)(1) does not constitute an "election" by the agency that is
  enforceable in a ULP proceeding.  54 FLRA at 362; RE B3.  The Authority
  reached this decision based upon five discrete considerations, set forth
  below.  Id.
  A.  The language of Section 2(d)
  The Authority began with an analysis of the precise wording of Section 2(d).
  54 FLRA at 376; RE B17.  The Authority noted that all parties agreed that
  the sole source of the asserted "election" under section 7106(b)(1) is
  Section 2(d) of the Executive Order.  Id.  Section 2(d) is one of five
  subsections in which the Executive Order directs particular actions that the
  head of each agency "shall" take.  Id.
  Relying upon basic definitions of the word "shall," the Authority determined
  that use of the word makes the direction to the head of the agency
  mandatory.  Id.  A mandatory direction, however, does not equate to the
  President's making an enforceable "election" under section 7106(b)(1).  54
  FLRA at 377; RE B18.  Thus, reading Section 2(d) to be a "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" would
  require the "words in Section 2(d) [to] have a meaning beyond their plain
  terms."  Id.  Noting that "[n]ot every order from a superior to a
  subordinate amounts to a requirement that is enforceable by administrative
  agencies and/or the courts," the Authority concluded that "Section 2(d) can
  be mandatory in nature without constituting a [s]tatutory election that is
  enforceable in [ULP] proceedings."  54 FLRA at 378; RE B19.
  B.  The purpose of the Executive Order
  Second, the Authority considered the overall purpose of Executive Order No.
  12871 and concluded on this basis as well that Section 2(d) "should be
  construed in accordance with its terms," and not "translated into a
  statutory election."  54 FLRA at 378-79; RE 19-20.  Analysis of overall
  purpose, for an Executive Order just as with a statute, is appropriate in
  determining the meaning of a specific provision.  54 FLRA at 379; RE B20
  (citing Sutherland Statutory Construction § 31.06 (5th ed. Supp. 1998)
  (Sutherland)).
  Based upon its review of the Executive Order as a whole, the Authority
  concluded that the Executive Order's "express purpose . . . is to facilitate
  the formation of labor-management partnerships in order to implement the
  Government reform objectives of the National Performance Review."  Id.  The
  Authority found this purpose to be confirmed by Sections 1 and 2 of the
  Order.  Id.
  Section 1 expressly confirms this purpose, as it creates the National
  Partnership Council, an entity "charged with, among other things,
  'supporting the creation of labor-management partnerships and promoting
  partnership efforts.'"  Id.  With regard to Section 2, the Authority noted
  that the section's five directions to agency heads regarding actions to be
  taken deal with matters "outside the framework of legal rights and
  obligations defined in the Statute."  54 FLRA at 380; RE B21.  Thus, the
  Authority reasoned, "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."  Id.
  C.  The impact of Section 3 of the Executive Order
  Third, the Authority reviewed the language of Section 2(d) in light of
  Section 3 of the Executive Order, which provides:
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.
Executive Order No. 12871 § 3; RE B50.  Particularly persuasive to the Authority
was the statement in Section 3 that the Order is "'intended only to improve the
internal management of the executive branch.'"  Commerce II, 54 FLRA at 380; RE
B21.  This statement of intent, read together with Section 3's express bar on
administrative or judicial review, convinced the Authority that its
interpretation of Section 2(d) as an exclusively internal management direction
was correct.  54 FLRA at 381; RE B22.
  The Authority concluded that if it construed Section 2(d) as an "election"
  under section 7106(b)(1), it would then be enforceable by the Authority and
  subject to judicial review.  54 FLRA at 380; RE B21.  According to the
  Authority, such construction would "ignore[] Section 3 entirely" and render
  it "nugatory with respect to Section 2(d)."  54 FLRA at 381; RE B22.  This,
  in the Authority's view, ran counter to the canon of statutory construction
  that provides, "'a statute should be interpreted so as not to render one
  part inoperative.'"  54 FLRA at 382; RE B23 (quoting South Carolina v.
  Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 (1986)) (South Carolina).
  The Authority accordingly found that Section 3 "compels the conclusion" that
  "Section 2(d) cannot be construed as an election that is reviewable and
  enforceable under the Statute."  54 FLRA at 381-82; RE B22-23.
  D.  Office of Personnel Management Guidance
  The Authority's fourth area of analysis centered on the parties' arguments
  regarding the impact of the Office of Personnel Management's (OPM) December
  16, 1993 Guidance (Guidance) to agencies regarding Executive Order No.
  12871.[7]  The Authority noted initially that "[t]here is no basis in the
  record to view OPM's issuance as evidencing the President's intent in the
  Executive Order."  54 FLRA at 382; RE B23.  As a result, the Authority did
  not rely on the Guidance as a parallel to statutory legislative history.
  Id.
  However, the Authority noted that even if it viewed the Guidance as evidence
  of the President's intent, it was not "persuaded that it establishes that
  Section 2(d) constitutes an election."  54 FLRA at 383; RE B24.  Although
  the Guidance states that bargaining over subjects within section 7106(b)(1)
  is "mandatory," this language suggests only that failure to negotiate in
  that manner violates the Executive Order and not the Statute.  54 FLRA at
  384; RE B25.
  Also, the Authority found that other statements in the Guidance suggest that
  "OPM does not view the Executive Order as taking an action that is
  enforceable in unfair labor practice proceedings."  54 FLRA at 385; RE B26.
  Specifically, the Authority noted that the Guidance's direction that parties
  engage in "interest-based bargaining" prescribes how the mandated bargaining
  is to be conducted and goes beyond the Statute.  Id.  Thus, OPM's Guidance
  interprets the Executive Order as requiring more than the Statute requires
  without suggesting that these additional requirements are enforceable in ULP
  proceedings.  Id.
  E.  Giving meaning to the Executive Order
  Finally, the Authority disagreed with arguments suggesting that failure to
  enforce the purported section 7106(b)(1) "election" would "render[] the
  Executive Order 'meaningless.'"  Id.  As the Authority stated, "[w]e
  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."  54 FLRA at 385-86; RE B26-27.
  The Authority also reviewed responses to surveys conducted of labor and
  management that indicated issues considered non-negotiable in the past were
  being considered and negotiated.  54 FLRA at 386; RE B27.  Thus, the
  Authority found "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)."  54 FLRA at 387; RE B28.

STANDARD OF REVIEW

  The standard of review of Authority decisions is "narrow." AFGE, Local 2343
  v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998).  Authority action shall be set
  aside only if "arbitrary, capricious, an abuse of discretion, or otherwise
  not in accordance with law."  5 U.S.C. § 7123(c), incorporating 5 U.S.C. §
  706(2)(A); Department of Veterans Med. Ctr. v. FLRA, 16 F.3d 1526, 1529 (9th
  Cir. 1994); Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769, 771-72 (D.C.
  Cir. 1988).  Under this standard, unless it appears from the Statute or its
  legislative history that the Authority's construction of its enabling act is
  not one that Congress would have sanctioned, the Authority's construction
  should be upheld.  See Chevron, U.S.A., Inc. v. Natural Resources Defense
  Council, Inc., 467 U.S. 837, 844 (1984) (Chevron).  A court should defer to
  the Authority's construction as long as it is reasonable.  See id. at 845.
  Further, as the Supreme Court has stated, the Authority is entitled to
  "considerable deference" when it exercises its "'special function of
  applying the general provisions of the [Statute] to the complexities' of
  federal labor relations."  BATF, 464 U.S. at 97 (citation omitted); see also
  AFGE, Local 2987 v. FLRA, 775 F.2d 1022, 1025 (9th Cir. 1985).  As the
  instant case demonstrates, among the "complexities of Federal labor
  relations" that the Authority must address as part of its everyday work is
  the interrelationship of the Statute and other laws, rules, and regulations
  governing the federal employment relationship.  West Point Elementary Sch.
  Teachers Ass'n v. FLRA, 855 F.2d 936, 940 (2d Cir. 1988); Department of the
  Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988).

SUMMARY OF ARGUMENT

  The Authority properly determined that the agency did not commit a ULP when
  it refused to bargain over its decision to move a bargaining unit employee.
  Although the decision to move the employee is a matter covered by section
  7106(b)(1) of the Authority's Statute, the Authority correctly ruled that
  Section 2(d) of Executive Order No. 12871 does not constitute an enforceable
  "election" to negotiate about such matters under section 7106(b)(1).  The
  Authority's interpretation of its own Statute is supported by the overall
  language and purpose of the Executive Order and, as petitioner acknowledges,
  is entitled to deference.
  Regarding the impact of Executive Order No. 12871 on the Statute, the plain
  language of Section 2(d) indicates that it was not intended to constitute an
  "election" to negotiate under section 7106(b)(1).  There is no legal
  requirement that directions from a superior to a subordinate, such as the
  Executive Order's direction from the President to agencies to bargain over
  matters covered by section 7106(b)(1), are necessarily administratively or
  judicially enforceable.  Accordingly, it would be erroneous to infer from
  Section 2(d)'s mandatory character that it equates to an "election" under
  section 7106(b)(1) to negotiate that is enforceable under the Statute's ULP
  procedures.
  The express purpose of the Executive Order--facilitation of labor-management
  partnerships--further supports the Authority's conclusion that Section 2(d)
  should not be construed as an "election" under section 7106(b)(1).  The
  creation and implementation of labor-management partnerships, to which
  virtually the entire Executive Order is directed, are matters not addressed
  by the Statute.  Because the Executive Order's overall orientation is toward
  matters not covered by the Statute, it was  reasonable for the Authority to
  conclude that Section 2(d) was similarly directed, and was not intended to
  effect an enforceable "election" to negotiate under section 7106(b)(1).
  Finally, Section 3 of the Executive Order confirms that Section 2(d) is not
  an enforceable section 7106(b)(1) "election" to bargain.  Section 3
  expressly states that the Executive Order was issued "only" to improve the
  internal management of the Executive Branch.  Moreover, Section 3
  specifically denies any intent to create any right to administrative or
  judicial review, or any other enforceable right.  A finding that Section
  2(d) is an enforceable "election" would flout this clear language of Section
  3.  In contrast, the Authority's interpretation of Section 2(d) in light of
  Section 3 comports not only with the language of Section 3, but also with
  established principles of statutory construction that caution against
  interpretations of executive orders that would render one part inoperative,
  as well as with case law regarding private rights of action under executive
  orders.
  Because the Authority's determination in this case is reasonable and
  correct, the petition for review should be denied.

ARGUMENT

THE AUTHORITY PROPERLY DETERMINED THAT THE AGENCY'S REFUSAL TO NEGOTIATE OVER A
5 U.S.C. § 7106(b)(1) MATTER WAS NOT AN UNFAIR LABOR PRACTICE BECAUSE SECTION
2(d) OF EXECUTIVE ORDER NO. 12871 DOES NOT CONSTITUTE A STATUTORY "ELECTION" TO
BARGAIN UNDER 5 U.S.C. § 7106(b)(1)

  The Authority correctly analyzed the impact of the Executive Order's Section
  2(d) on the Statute's section 7106(b)(1), and reasonably determined that
  Section 2(d)'s direction to agency management did not constitute an
  enforceable "election" under the Statute such that the agency had committed
  a ULP.  The Authority issued its decision against a background of well-
  established Authority precedent.  According to that precedent, matters
  covered by section 7106(b)(1) of the Statute are considered "permissive"
  subjects of bargaining.  See Commerce I, 53 FLRA at 870.  Authority
  precedent also "clearly states that an agency that elects to bargain over
  section 7106(b)(1) matters may withdraw from bargaining at any time before
  reaching agreement."  Id. at 871.  As a result of this ability to withdraw,
  "the Authority has not previously found that an agency acted unlawfully in
  refusing to bargain over a section 7106(b)(1) subject."  Id.  Accordingly,
  although the Authority has found that once agreement has been reached on a
  section 7106(b)(1) matter, the agreement is enforceable, see id. at 873, it
  has also held that "an agency official who elects to bargain with a union
  about permissive subjects but later withdraws that election prior to
  reaching agreement does not commit an unfair labor practice," id. at 874.[8]
  As petitioner acknowledges, this case "involves a pure question of statutory
  construction," (Pet. Brief at 20), and the Authority's view is therefore
  entitled to deference.  See Chevron, 467 U.S. at 844.  Petitioner has not
  demonstrated how the Authority's interpretation of the Statute is in any way
  "arbitrary, capricious, an abuse of discretion, or otherwise not in
  accordance with law."[9]  See 5 U.S.C. § 7123(c), incorporating 5 U.S.C. §
  706(2)(A).  As a result, and as set forth below, the petition for review
  should be denied.
  A.  The plain language of the Executive Order indicates that it was not
  intended to create an enforceable "election" to bargain under section 7106(b)
  (1) of the Statute
  As the Authority held in Commerce II, nothing in the "precise words" of
  Section 2(d), "or elsewhere in the Executive Order, expressly states that
  the President is making an 'election under the Statute.'"  54 FLRA at 377;
  RE B18.  Thus, the assertion that Section 2(d) creates an enforceable
  "election" to bargain--or as petitioner suggests, that the agency is "duty-
  bound to bargain," Pet. Brief at 32--seeks to give the words in Section 2(d)
  "a meaning beyond their plain terms."  54 FLRA at 377; RE B18.
  The fact that, as the parties agree, Section 2(d) constitutes a mandatory
  direction from the President to the agencies to bargain on section 7106(b)
  (1) matters is not to the contrary.[10]  As the Authority reasoned, 54 FLRA
  at 378; RE B19, there is no legal requirement that necessarily makes an
  order from a superior to a subordinate administratively or judicially
  enforceable.  Cf., e.g., Chen v. Carroll, 866 F. Supp. 283, 287 (E.D. Va.
  1994) (finding that an executive order direction that the Attorney General
  and Secretary of State "'provide for' enhanced consideration" of certain
  individuals in immigration situations, was not equivalent to a legally
  enforceable "requirement that such enhanced consideration be given").  Yet
  this is precisely the position advanced by petitioner.  Petitioner in effect
  seeks to "translate the verb 'shall' [in Section 2(d)] 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."  54 FLRA at 377; RE B18.  Such an interpretation
  finds no support in principles of statutory construction or case law, and
  should be rejected.
  Equally unsupportable is petitioner's argument that the Authority's
  rationale in this regard leads to the "absurd result" that complying
  agencies are "subject to the coverage of the Statute," while noncomplying
  agencies "evade statutory coverage."  Pet. Brief at 33-34.  First,
  regardless of whether an agency complies with Executive Order No. 12871, it
  remains subject to the provisions and mandates of the Statute.  Second,
  because of the mandatory direction in Section 2(d), a noncomplying,
  insubordinate agency is nevertheless accountable to the President.  As the
  Authority noted in Commerce II, "[w]e 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."  54 FLRA at 385-86; RE 26-27.
  Petitioner also errs in asserting that because of the acknowledged mandatory
  nature of Section 2(d), this Executive Order should be enforceable in the
  same manner as was Executive Order No. 11491.  Pet. Brief at 29 (citing Old
  Dominion Branch No. 496, National Association of Letter Carriers v. Austin,
  418 U.S. 264 (1973) (Old Dominion)).  Old Dominion is inapposite.  That case
  addressed the President's authority to issue an Executive Order regarding
  the operation of the Executive Branch.  Old Dominion, 418 U.S. at 273 n.5.
  There is no issue in the instant case concerning the President's authority
  to issue Executive Order No. 12871.  Rather, this case deals with the impact
  of the Executive Order on the operation of section 7106(b)(1) of the
  Statute.  Furthermore, Executive Order No. 11491 contained explicit remedial
  provisions for any violations of its mandates.  See, e.g., Executive Order
  No. 11491 § 4, 3 C.F.R. (1969 Comp.) at 191, reprinted in 5 U.S.C. § 7101
  note (1994) (authorizing the Federal Labor Relations Council to adjudicate
  ULP cases under the Order).  Executive Order No. 12871, in contrast, lacks
  such express remedial provisions, and, as discussed infra pp. 24-27
  regarding Section 3 of the Order, prohibits any administrative or judicial
  remedies.  See Executive Order No. 12871 § 3; RE B50.
  B.  The purpose and intent of the Executive Order demonstrate that Section 2(d)
  should not be construed as making an "election" to bargain under section 7106(b)
  (1) of the Statute
  Analyzing the Executive Order according to accepted principles of statutory
  construction, the Authority also correctly determined that the overall
  purpose of the Executive Order supports the conclusion that Section 2(d) was
  not intended to serve as a statutory "election" to negotiate under section
  7106(b)(1).[11]  See, e.g., John Hancock Mut. Life Ins. Co. v. Harris Trust
  & Sav. Bank, 510 U.S. 86, 94-95 (1993) (In interpreting a statute, the Court
  "look[s] to the provisions of the whole law, and to its object and
  policy.").  The Executive Order's express purpose is to "facilitate the
  formation of labor- management partnerships in order to implement the
  Government reform objectives of the National Performance Review."  Commerce
  II, 54 FLRA at 379; RE B20.  This purpose "sheds . . . light on how Section
  2(d) should be construed."  Id.
  Both Sections 1 and 2 support the Authority's finding that the focus of the
  Executive Order is limited to the creation and promotion of labor-management
  partnerships.  Section 1, establishing the National Partnership Council,
  clearly has this purpose.  See id.  Similarly, regarding Section 2, the five
  actions agency heads are directed to take therein, including the direction
  to negotiate over section 7106(b)(1) matters, were expressly included to
  effectuate the implementation of labor-management partnerships, as the title
  of that section indicates.  See 54 FLRA at 380; RE B21.
  The Authority's determination that Section 2(d) was not intended as an
  "election" under section 7106(b)(1) of the Statute is consistent with the
  predominant character of the Executive Order, discussed above.  The creation
  and implementation of labor-management partnerships, to which virtually the
  entire Executive Order is directed, are matters that the Statute does not
  address.  These matters are, as the Authority discussed, "outside the
  framework of legal rights and obligations defined in the Statute."  Id.
  Because the undeniable orientation of the Executive Order is toward matters
  not covered by the Statute, it is reasonable to conclude that Section 2(d)
  has a similar focus, and was not intended to "effect an action under the
  Statute."  Id.  Thus, both the plain language and the purpose of the
  Executive Order support the Authority's conclusion in this case.
  C.  Executive Order Section 3 confirms that Section 2(d) is not an "election" to
  bargain under section 7106(b)(1) of the Statute
  The plain language of Section 3 of the Executive Order supports the
  Authority's decision in this case.  The Authority's interpretation of
  Section 3 of the Executive Order is consistent with the manner in which such
  executive orders have been interpreted in the past, and with precedent in
  this and other circuits concluding that such orders do not establish a
  private right of action.  Moreover, the Authority's interpretation comports
  with the discretionary nature of such Presidential directives.  Thus, the
  Authority properly interpreted the Executive Order and its effect under
  section 7106(b)(1) of the Authority's Statute.
  Section 3 demonstrates conclusively that Section 2(d) does not constitute an
  "election" enforceable under section 7106(b)(1).  The very first sentence of
  Section 3 expresses the Executive Order's limited scope.  According to
  Section 3, the Executive Order was issued "only to improve the internal
  management of the executive branch."  Executive Order No. 12871 § 3
  (emphasis added); RE B50.
  The second clause of Section 3's first sentence underscores the Executive
  Order's intent not to create enforceable rights where none previously
  existed.  Section 3 states in this regard that it "is not intended to, and
  does not, create any right to administrative or judicial review, or any
  other right . . . enforceable by a party."  Id.  This express statement in
  the Executive Order refutes petitioner's argument that, with the advent of
  the Executive Order, unions now have new rights, and agencies new
  obligations, enforceable through the Statute's ULP procedures administered
  by the FLRA and enforced by the Courts under 5 U.S.C. § 7123.
  To ensure the accuracy of its interpretation of Section 3's language, the
  Authority analyzed alternative constructions of Section 2(d) and their
  relationship to this language of Section 3.  Commerce II, 54 FLRA at 381; RE
  B22.  As the Authority observed, construing Section 2(d) as an internal
  management directive allows the agency to elect to negotiate without
  offending the language of Section 3.  Id.  Construing Section 2(d) as an
  enforceable "election" to negotiate, however, "ignores Section 3 entirely
  and, indeed, renders it nugatory with respect to Section 2(d)."  Id.[12]
  The Authority's interpretation of the Executive Order with respect to the
  "election" provisions of section 7106(b)(1) accords with established
  principles of statutory construction.  It is inappropriate to interpret an
  executive order in a manner that would "'render one part inoperative,'" as
  would occur with the latter construction above.  Commerce II, 54 FLRA at
  382; RE B23 (quoting South Carolina, 476 U.S. at 510 n. 22 (1985)).[13]
  Further support for the Authority's interpretation of the impact of Section
  3 on its ultimate conclusion regarding Section 2(d) is found in case law
  regarding private rights of action under executive orders.  In Utley, for
  example, this Court examined an executive order to determine whether the
  order created a private right of action.  811 F.2d at 1285-86.  In
  concluding that the executive order did not create such a right, the Court
  relied upon the "'elemental canon of statutory construction that where a
  statute expressly provides a particular remedy or remedies, a court must be
  chary of reading others into it.'"  Id. at 1285 (citation omitted).
  In the instant case, Section 3 of the Executive Order clearly provides that
  there is to be no private right of action.  As in Utley, this Court "must be
  chary of reading other [remedies]," such as enforceability of Section 2(d)
  through the Statute, "into it."  Id.; see also Zhang v. Slattery, 55 F.3d
  732, 748 (2d Cir. 1995) (observing that nothing in the executive order there
  at issue "indicated that the order was anything other than a directive
  issued to one of [the] cabinet officers," and despite the noncompliance by
  the Attorney General, concluding that "it is not the role of the federal
  courts to administer the executive branch"); Chen Zhou Chai v. Carroll, 48
  F.3d 1331, 1339 (4th Cir. 1995) ("A court should not enforce an executive
  order intended for the internal management of the President's cabinet.").
  Finally, the very nature of an executive order--the President has broad
  discretion to issue such orders, see Old Dominion, 418 U.S. at 273 n.5--
  supports the Authority's determination in this case.  Petitioner, arguing
  that the Executive Order effects a statutory "election", notes that "[i]f
  the President does not desire the effects of a [s]ection 7106(b)(1) election
  that is Government-wide, his option is to rescind the election that has been
  made."  Pet. Brief at 42.  Given the Authority's interpretation of the
  Executive Order, such Presidential action is unnecessary.  On the other
  hand, if the Authority's interpretation of the Order were at odds with the
  President's desires, he could have, during the five months since the
  Authority's decisions issued, clarified or amended this order to reflect his
  intent.[14]
  In sum, the overall language and intent of the Executive Order supports the
  Authority's conclusion that Section 2(d) is not an enforceable "election"
  under section 7106(b)(1).  As this ultimate determination by the Authority
  is an interpretation of its own organic Statute, it is entitled to
  deference.  Petitioner concedes that it is the Authority's responsibility to
  determine whether Presidential directives implicate the Statute.  Pet. Brief
  at 38.  The Authority has reasonably concluded that Executive Order No.
  12871 does not effect an "election" under the Statute.  Thus, the Court
  should deny the petition for review in this case.

CONCLUSION

  The petition for review should be denied.


  Respectfully submitted,


            DAVID M. SMITH
              Solicitor


            WILLIAM R. TOBEY
              Deputy Solicitor


            ANN M. BOEHM
              Attorney


            Federal Labor Relations
            Authority
            607 14th Street, N.W.
            Washington, D.C. 20424
            (202) 482-6620

December 1998



CERTIFICATION PURSUANT TO FRAP RULE 32
AND CIRCUIT RULE 32(e)(4),
FORM OF BRIEF

  Pursuant to Federal Rule of Appellate Procedure 32 and Ninth Circuit Rule
  32(e)(4), I certify that the attached brief is monospaced, has 10.5 or less
  characters per inch, and contains 7,287 words.


December 2, 1998

___________________________
               Ann M. Boehm




IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

_______________________________

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 147, AFL-CIO,
          Petitioner

     v.                             No. 98-70912

FEDERAL LABOR RELATIONS AUTHORITY,
          Respondent

    and

SOCIAL SECURITY ADMINISTRATION,
SANTA ROSA DISTRICT OFFICE, SANTA
ROSA, CALIFORNIA,
          Intervenor
_______________________________




CERTIFICATE OF SERVICE

I certify that copies of the Brief For The Federal Labor Relations
Authority, have been served this day, by mail, upon
the following:


  Mark D. Roth                   Kevin M. Grile
  General Counsel                Assistant General Counsel
  Charles A. Hobbie              American Federation of
  Deputy General Counsel           Government Employees,
  American Federation of           AFL-CIO
    Government Employees,        449 North Clark St., Room 300
    AFL-CIO                      Chicago, Illinois 60610
  80 F Street, N.W.
  Washington, D.C. 20001

  William Kanter
  Alfred Mollin
  Attorneys
  Appellate Staff, Civil Division
  601 D Street, N.W., Room 9554
  Department of Justice
  Washington, D.C.  20530-0001


                            Thelma Brown
                            Paralegal Specialist

December 2, 1998



STATUTORY ADDENDUM

TABLE OF CONTENTS

1.  5 U.S.C. § 7103(a)(12), (14)............................ A-1
2.  5 U.S.C. § 7105(a)(1), (2).............................. A-2
3.  5 U.S.C. § 7105(a)(2)(G),(I)............................ A-2
4.  5 U.S.C. § 7106(a)(1), (2).............................. A-3
5.  5 U.S.C. § 7106(b)...................................... A-3
6.  5 U.S.C. § 7114(b)...................................... A-4
7.  5 U.S.C. § 7116(a)(1), (5).............................. A-5
8.  5 U.S.C. § 7117(a)(1)................................... A-6
9.  5 U.S.C. § 7119......................................... A-7
9.  5 U.S.C. § 7123(a), (c)................................. A-8


§ 7103. Definitions; application
  (a) For the purpose of this chapter-

* * * * * * * * * *

  (12) "collective bargaining" means the performance of the mutual obligation
  of the representative of an agency and the exclusive representative of
  employees in an appropriate unit in the agency to meet at reasonable times
  and to consult and bargain in a good-faith effort to reach agreement with
  respect to the conditions of employment affecting such employees and to
  execute, if requested by either party, a written document incorporating any
  collective bargaining agreement reached, but the obligation referred to in
  this paragraph does not compel either party to agree to a proposal or to
  make a concession;

* * * * * * * * * *

  (14) "conditions of employment" means personnel policies, practices, and
  matters, whether established by rule, regulation, or otherwise, affecting
  working  conditions, except that such term does not include policies,
  practices, and matters-
  (A) relating to political activities prohibited under subchapter III of
  chapter 73 of this title;
  (B) relating to the classification of any position; or
  (C) to the extent such matters are specifically provided for by Federal
  statute;

* * * * * * * * * *

§ 7105. Powers and duties of the Authority
  (a)(1) The Authority shall provide leadership in establishing policies and
  guidance relating to matters under this chapter, and, except as otherwise
  provided, shall be responsible for carrying out the purpose of this chapter.
  (2) The Authority shall, to the extent provided in this chapter and in
  accordance with regulations prescribed by the Authority-

* * * * * * * * * *

  (G) conduct hearings and resolve complaints of unfair labor practices under
  section 7118 of this title;

* * * * * * * * * *

  (I) take such other actions as are necessary and appropriate to effectively
  administer the provisions of this chapter.

* * * * * * * * * *

§ 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-
  (1) to determine the mission, budget, organization, number of employees, and
  internal security practices of the agency; and
  (2) in accordance with applicable laws-
  (A) to hire, assign, direct, layoff, and retain employees in the agency, or
  to suspend, remove, reduce in grade or pay, or take other disciplinary
  action against such employees;
  (B) to assign work, to make determinations with respect to contracting out,
  and to determine the personnel by which agency operations shall be
  conducted;

* * * * * * * * * *

  (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.
§ 7114. Representation rights and duties

* * * * * * * * * *

  (b) The duty of an agency and an exclusive representative to negotiate in
  good faith under subsection (a) of this section shall include the
  obligation-

* * * * * * * * * *

  (2) to be represented at the negotiations by duly authorized representatives
  prepared to discuss and negotiate on any condition of employment;

* * * * * * * * * *

  (5) if agreement is reached, to execute on the request of any party to the
  negotiation a written document embodying the agreed terms, and to take such
  steps as are necessary to implement such agreement.

* * * * * * * * * *

§ 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;

* * * * * * * * * *

§ 7117. Duty to bargain in good faith; compelling need; duty to consult
  (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in
  good faith shall, to the extent not inconsistent with any Federal law or any
  Government-wide rule or regulation, extend to matters which are the subject
  of any rule or regulation only if the rule or regulation is not a
  Government-wide rule or regulation.

* * * * * * * * * *

§ 7119. Negotiation impasses; Federal Service Impasses Panel
  (a) The Federal Mediation and Conciliation Service shall provide services
  and assistance to agencies and exclusive representatives in the resolution
  of negotiation impasses. The Service shall determine under what
  circumstances and in what matter it shall provide services and assistance.
  (b) If voluntary arrangements, including the services of the Federal
  Mediation and Conciliation Service or any other third-party mediation, fail
  to resolve a negotiation impasse-
  (1) either party may request the Federal Service Impasses Panel to consider
  the matter, or
  (2) the parties may agree to adopt a procedure for binding arbitration of
  the negotiation impasses, but only if the procedure is approved by the
  Panel.
  (c)(1) The Federal Service Impasses Panel is an entity within the Authority,
  the function of which is to provide assistance in resolving negotiation
  impasses between agencies and exclusive representatives.
  (2) The Panel shall be composed of a Chairman and at least six other
  members, who shall be appointed by the President, solely on the basis of
  fitness to perform duties and functions involved, from among individuals who
  are familiar with Government operations and knowledgeable in labor-
  management relations.
  (3) Of the original members of the Panel, 2 members shall be appointed for a
  term of 1 year, 2 members shall be appointed for a term of 3 years, and the
  Chairman and the remaining members shall be appointed for a term of 5 years.
  Thereafter each member shall be appointed for a term of 5 years, except that
  an individual chosen to fill a vacancy shall be appointed for the unexpired
  term of the member replaced. Any member of the Panel may be removed by the
  President.
  (4) The Panel may appoint an Executive Director and any other individuals it
  may from time to time find necessary for the proper performance of its
  duties. Each member of the Panel who is not an employee (as defined in
  section 2105 of this title) is entitled to pay at a rate equal to the daily
  equivalent of the maximum annual rate of basic pay then currently paid under
  the General Schedule for each day he is engaged in the performance of
  official business of the Panel, including travel time, and is entitled to
  travel expenses as provided under section 5703 of this title.
  (5)(A) The Panel or its designee shall promptly investigate any impasse
  presented to it under subsection (b) of this section. The Panel shall
  consider the impasse and shall either-
  (i) recommend to the parties procedures for the resolution of the impasse;
  or
  (ii) assist the parties in resolving the impasse through whatever methods
  and procedures, including factfinding and recommendations, it may consider
  appropriate to accomplish the purpose of this section.
  (B) If the parties do not arrive at a settlement after assistance by the
  Panel under subparagraph (A) of this paragraph, the Panel may-
  (i) hold hearings;
  (ii) administer oaths, take the testimony or deposition of any person under
  oath, and issue subpenas as provided in section 7132 of this title; and
  (iii) take whatever action is necessary and not inconsistent with this
  chapter to resolve the impasse.
  (C) Notice of any final action of the Panel under this section shall be
  promptly served upon the parties, and the action shall be binding on such
  parties during the term of the agreement, unless the parties agree
  otherwise.
§ 7123. Judicial review; enforcement
  (a) Any person aggrieved by any final order of the Authority other than an
  order under-
  (1) section 7122 of this title (involving an award by an arbitrator), unless
  the order involves an unfair labor practice under section 7118 of this
  title, or
  (2) section 7112 of this title (involving an appropriate unit
  determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in the
United States court of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals for the District of
Columbia.

* * * * * * * * * *

  (c) Upon the filing of a petition under subsection (a) of this section for
  judicial review or under subsection (b) of this section for enforcement, the
  Authority shall file in the court the record in the proceedings, as provided
  in section 2112 of title 28. Upon the filing of the petition, the court
  shall cause notice thereof to be served to the parties involved, and
  thereupon shall have jurisdiction of the proceeding and of the question
  determined therein and may grant any temporary relief (including a temporary
  restraining order) it considers just and proper, and may make and enter a
  decree affirming and enforcing, modifying and enforcing as so modified, or
  setting aside in whole or in part the order of the Authority. The filing of
  a petition under subsection (a) or (b) of this section shall not operate as
  a stay of the Authority's order unless the court specifically orders the
  stay. Review of the Authority's order shall be on the record in accordance
  with section 706 of this title. No objection that has not been urged before
  the Authority, or its designee, shall be considered by the court, unless the
  failure or neglect to urge the objection is excused because of extraordinary
  circumstances. The findings of the Authority with respect to questions of
  fact, if supported by substantial evidence on the record considered as a
  whole, shall be conclusive. If any person applies to the court for leave to
  adduce additional evidence and shows to the satisfaction of the court that
  the additional evidence is material and that there were reasonable grounds
  for the failure to adduce the evidence in the hearing before the Authority,
  or its designee, the court may order the additional evidence to be taken
  before the Authority, or its designee, and to be made a part of the record.
  The Authority may modify its findings as to the facts, or make new findings
  by reason of additional evidence so taken and filed. The Authority shall
  file its modified or new findings, which, with respect to questions of fact,
  if supported by substantial evidence on the record considered as a whole,
  shall be conclusive. The Authority shall file its recommendations, if any,
  for the modification or setting aside of its original order. Upon the filing
  of the record with the court, the jurisdiction of the court shall be
  exclusive and its judgment and decree shall be final, except that the
  judgment and decree shall be subject to review by the Supreme Court of the
  United States upon writ of certiorari or certification as provided in
  section 1254 of title 28.

* * * * * * * * * *




[1]     Pertinent statutory provisions are set forth in Addendum A to this
brief.
[2]    Executive Order No. 12871, 3 C.F.R. (1993 Comp.) at 655, reprinted in 5
U.S.C. § 7101 note (1994), is set forth at RE B47-50.
[3]    Section 7106(b)(1) provides, in relevant part, that "[n]othing in this
section shall preclude any agency and any labor organization from negotiating at
the election of the agency, on the numbers, types, and grades or positions
assigned to any organizational subdivision, work project, or tour of duty . . .
."  5 U.S.C. § 7106(b)(1) (emphasis added).
[4]    Before issuing its Commerce II decision, the Authority issued a partial
decision and order in U.S. Department of Commerce, Patent and Trademark Office,
53 FLRA (No. 70) 858 (Nov. 17, 1997) (Commerce I) directing the parties in that
case and in four other cases--the instant case being one of those four--as well
as amicus curiae, to submit written responses to questions regarding the
relationship between Executive Order No. 12871 and section 7106(b)(1).
[5]    The Authority also relied upon the Commerce II affirmation of Autho