National Federation of Federal Employees v. U.S. Department of the Interior, 526 U.S. 86 (1999).


Nos. 97-1184, 97-1243

In the Supreme Court of the United States

October Term, 1998

_______________________________

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1309,
PETITIONER

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C.
AND FEDERAL LABOR RELATIONS AUTHORITY

FEDERAL LABOR RELATIONS AUTHORITY,
PETITIONER

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C.
AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1309
_______________________________



ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT




BRIEF FOR THE PETITIONER
FEDERAL LABOR RELATIONS AUTHORITY


        DAVID M. SMITH*
            Solicitor

        JAMES F. BLANDFORD
            Attorney


        Federal Labor Relations Authority
        607 14TH Street, N.W.
        Washington, D.C.  20424-0001
        (202) 482-6620

  *Counsel of Record




QUESTION PRESENTED

Whether a federal agency employer has a duty to bargain over a proposal that
would create a contractual obligation to negotiate over union-initiated
proposals offered during the term of a collective bargaining agreement.



TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED

STATEMENT

A.  The Federal Service Labor-Management Relations Statute

B.  The Instant Case

1.  Factual Background

2.  Relevant Administrative and Judicial Precedent

a.  The D.C. Circuit's Decision in NTEU v. FLRA

b.  The Fourth Circuit's Decision in SSA v. FLRA

c.  The Fourth Circuit's Decision in Energy v. FLRA

3.  The Decision of the Court of Appeals in the Instant Case



SUMMARY OF ARGUMENT

ARGUMENT

I.  The Authority Properly Determined That an Agency Is
Obligated Under the Statute to Bargain over Union-
Initiated Midterm Proposals and a Bargaining Proposal
That Restates That Obligation Is Negotiable

A.  The Authority's Interpretation is Supported by
the Language of the Statute and Entitled to
Deference

1.  The Statute Establishes a Broad Duty to Bargain

2.  Deference Is Owed to the Authority's Interpretation

3.  The Fourth Circuit Has Improperly Failed to
Defer to the Authority and Has Misinterpreted
the Statute

B.  Neither the Statute's Legislative History Nor
Practice Under the Predecessor Executive Order
Supports the Fourth Circuit's Position

1.  The Fourth Circuit Misconstrued the Senate
Report

2.  The Fourth Circuit Mistakenly Interprets
Precedent Established under Executive
Order 11,491

C.  The Fourth Circuit Improperly Rejected Relevant
Private Sector Precedent

1.  Private Sector Precedent on Midterm Bargaining
Is Relevant to Interpreting the Statute

2.  The Fourth Circuit's Rationale for
Discounting Private Sector Precedent Is
Flawed

3.  The Authority Reasonably Adopted Private
Sector Limitations on Midterm Bargaining

D.  The Authority's Holding Furthers the Purposes and
Goals of the Statute

II.  Even If There Is No Statutory Obligation to Bargain
Midterm, a Contract Provision Providing for Midterm
Bargaining Is Negotiable Because It Is Not Inconsistent
with Applicable Law, Rule, or Regulation

A.  The Obligation to Bargain Is Not Delimited by the
Rights Granted under the Statute

B.  Union-Initiated Midterm Bargaining Is Not
Inconsistent with the Statute or Any Other
Law or Applicable Regulation

1.  A Bargaining Proposal Providing for Union-
Initiated Midterm Bargaining Is Not
Inconsistent with the Statute or Any Other
Law or Applicable Regulation

2.  The Fourth Circuit's Concern that Permitting
Unions to Negotiate for Midterm Bargaining
Would Effectively Vitiate SSA V. FLRA Will
Be Rendered Moot by A Meaningful Resolution
of this Case

3.  The Court of Appeals Has Identified No
Provision of Law That Would Prohibit an
Agency from Engaging in Midterm Bargaining

4.  The Union's Proposal Is Negotiable Because
Bargaining over Union-Initiated Midterm
Proposals Is Within the Agency's Discretion

CONCLUSION



TABLE OF AUTHORITIES

Cases:

AFGE, Interdepartmental Local 3723, AFL-CIO, 9 FLRA 744
    (1982), aff'd, 712 F.2d 640 (D.C. Cir. 1983)

AFGE, Local 1698 and U.S. Dep't of the Navy, Naval
    Aviation Supply, Office, Philadelphia, Pa.,
    38 FLRA 1016 (1990)

AFGE, Local 2782 v. FLRA, 702 F.2d 1183 (D.C. Cir. 1983)

AFGE v. FLRA, 785 F.2d 333 (D.C. Cir. 1986)

Air Force Logistics Command, Wright-Patterson Air Force
    Base, Ohio, 45 FLRA 1290 (1992)

American Fed'n of Gov't Employees v. FLRA,
    778 F.2d 850 (D.C. Cir. 1985)

Army and Air Force Exch. Serv., Capitol Exch. Region
    Headquarters, Case No. 22-6657(CA), 2 Rulings on
    Request for Review 561 (Ass't Sec'y of Labor
    1976)

Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978)

Brecht v. Abrahamson, 507 U.S. 619 (1993)

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

Caterpillar, Inc. v. Lewis, ___ U.S. ___, 117 S. Ct. 467
    (1996)

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

City of St. Louis v. Praprotnik, 485 U.S. 112 (1988)

Conley v. Gibson, 355 U.S. 41 (1957)

Council of Prison Locals v. Brewer, 735 F.2d 1497
    (D.C. Cir. 1984)

Department of Defense, Office of Dependents Schools v.
    FLRA, 879 F.2d 1220 (4th Cir. 1989)

Department of Defense v. FLRA, 659 F.2d 1140
    (D.C. Cir. 1981)

Department of Energy v. FLRA, 106 F.3d 1158
    (4th Cir. 1997)

Department of Health and Human Servs., Social Security
    Admin., Office of Hearings and Appeals, Falls
    Church, Va. and Nat'l Treasury Employees Union,
    94 FSIP 47 (Aug. 3, 1994)

Department of Health and Human Servs. v. FLRA,
    976 F.2d 1409 (D.C. Cir. 1992)

Department of Justice v. FLRA, 991 F.2d 285
    (5th Cir. 1993)

Department of the Air Force, Scott Air Force Base, Ill.,
    34 FLRA 1129 (1990)

Department of the Air Force v. FLRA, 877 F.2d 1036
    (D.C. Cir. 1989)

Department of the Navy, Military Sealift Command v. FLRA,
    836 F.2d 1409 (3d Cir. 1988)

Department of the Navy, United States Marine Corps,
    34 FLRA 635 (1990)

Department of the Treasury, U.S. Customs Serv. v. FLRA,
    836 F.2d 1381 (D.C. Cir. 1988)

Department of the Treasury v. FLRA, 494 U.S. 922 (1990)

Federal Employees Metal Trade Council, AFL-CIO v. FLRA,
    778 F.2d 1429 (9th Cir. 1985)

Federal/Postal/Retiree Coalition v. Devine, 751 F.2d 1424
    (D.C. Cir. 1985)

FLRA v. Internal Revenue Service, 838 F.2d 567
    (D.C. Cir. 1988)

Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990)

Illinois National Guard v. FLRA, 854 F.2d 1396
    (D.C. Cir. 1988)

INS v. FLRA, 855 F.2d 1454 (9th Cir. 1988)

Internal Revenue Serv., 17 FLRA 731 (1985)

Internal Revenue Serv., 29 FLRA 162 (1987)

IRS v. FLRA, 717 F.2d 1174 (7th Cir. 1983)

Johnston v. Penrod Drilling Co., 803 F.2d 867
    (5th Cir. 1986)

Karahalios v. NFFE, 489 U.S. 527 (1989)

Library of Congress v. FLRA, 699 F.2d 1280
    (D.C. Cir. 1983)

Merit Sys. Protection Bd. Prof'l Ass'n and Merit Sys.
    Protection Bd., Washington, D.C., 30 FLRA 852
    (1988))

Missouri National Guard, Office of the Adjutant Gen.,
    Jefferson City, Missouri, 31 FLRA 1244 (1988)

National Fed'n of Federal Employees, Local 2099 and
    Dep't of the Navy, Naval Plant Representative
    Office, St. Louis, Mo., 35 FLRA 362 (1990)

National Treasury Employees Union and Department of the
    Treasury, U.S. Customs Serv., 21 FLRA 6 (1986),
    enforced, 836 F.2d 1381 (D.C. Cir. 1988)

National Treasury Employees Union and U.S. Department of
    the Treasury, Bureau of Alcohol, Tobacco and Firearms,
    Washington, D.C., 43 FLRA 1442 (1992), remanded on
    other grounds, 30 F.3d 1510 (D.C. Cir. 1994)

National Treasury Employees Union Chapter 83 and
    Department of the Treasury, Internal Revenue Service,
    35 FLRA 398 (1990)

National Treasury Employees Union v. FLRA, 810 F.2d 295
    (D.C. Cir. 1987)

Navy Public Works Ctr., Pearl Harbor, Honolulu, Hawaii v.
    FLRA, 678 F.2d 97 (9th Cir. 1982)

NL Industries v. NLRB, 536 F.2d 786 (8th Cir. 1976)

NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775
    (1990)

NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)

NLRB v. Jacobs Mfg. Co., 196 F.2d 680 (2d Cir. 1952)

NLRB v. Sands Mfg. Co., 306 U.S. 332 (1939)

NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982)

NTEU v. FLRA, 732 F.2d 703 (9th Cir. 1984)

Nuclear Regulatory Commission v. FLRA, 895 F.2d 152
    (4th Cir. 1990)

Social Security Admin. v. FLRA, 956 F.2d 1280
    (4th Cir. 1992)

Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982)

United States Department of Health and Human Servs. v.
    FLRA, 976 F.2d 229 (4th Cir. 1992)

United States v. Wells, ___ U.S. ___, 117 S. Ct. 921
    (1997)

United States v. Williams, 504 U.S. 36 (1992)

U.S. Department of Energy, Washington, D.C., 51 FLRA 124
    (1995)

U.S. Dep't of Health and Human Servs., Social
    Sec. Admin., Baltimore, Md., 47 FLRA 1004 (1993)

U.S. Naval Ordnance Station, Louisville, Kentucky v. FLRA,
    818 F.2d 545 (6th Cir. 1987)

U.S. Patent and Trademark Office, 45 FLRA 1090 (1992),
    rev'd, 991 F.2d 790 (4th Cir. 1993)



Statutes, rules and regulations:

The Federal Service Labor-Management Relations Statute,
  5 U.S.C. 7101-7135 (1994 & Supp. II 1996)
  5 U.S.C. 7101(a)
  5 U.S.C. 7101(a)(1)
  5 U.S.C. 7101(b)
  5 U.S.C. 7103(a)(8)
  5 U.S.C. 7103(a)(12)
  5 U.S.C. 7103(a)(14)
  5 U.S.C. 7105
  5 U.S.C. 7105(a)(1), (2)
  5 U.S.C. 7106(a)
  5 U.S.C. 7106(b)(2)
  5 U.S.C. 7106(b)(3)
  5 U.S.C. 7114(b)(2)
  5 U.S.C. 7114(b)(5)
  5 U.S.C. 7114(c)
  5 U.S.C. 7116(a)
  5 U.S.C. 7116(b)(7)
  5 U.S.C. 7117(a)
  5 U.S.C. 7117(c)
  5 U.S.C. 7119(b)
  5 U.S.C. 7119(b)(1)
  5 U.S.C. 7119(c)
  5 U.S.C. 7119(c)(5)
  5 U.S.C. 7119(c)(5)(A)
  5 U.S.C. 7119(c)(5)(B)
  5 U.S.C. 7119(c)(5)(C)
  5 U.S.C. 7123(a)
  5 U.S.C. 7123(b)
  28 U.S.C. 1254(1)
  29 U.S.C. 158(d)

Civil Service Reform Act of 1978, Pub. L. No. 95-454,
    92 Stat. 1111 (1978)

Executive Order No. 10988, 3 C.F.R. 521 (1959-1963 comp.)

Executive Order No. 11491, 3 C.F.R. 861 (1966-1970 comp.),
    as amended by Executive Orders Nos. 11616, 11636, and
    11838, 3 C.F.R. 605, 634, 957 (1971-1975 comp.)



Miscellaneous:

124 Cong. Rec. 29198 (1978)

Joint Explanatory Statement of the Committee on Conference,
    H.R. 1717, 95th Cong., 2d Sess. 127 (1978),
    reprinted in

S. Rep. No. 969, 95th Cong., 2d Sess. 104 (1978)

2A Sutherland, Statutory Construction, 47.34
    (5th ed. 1992)





In the Supreme Court of the United States

OCTOBER TERM, 1998

Nos. 97-1184, 97-1243

_______________________________

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1309,
PETITIONER

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C.
 AND FEDERAL LABOR RELATIONS AUTHORITY


FEDERAL LABOR RELATIONS AUTHORITY,
PETITIONER

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C.
    AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1309
_______________________________



ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT




BRIEF FOR THE PETITIONER
FEDERAL LABOR RELATIONS AUTHORITY



OPINIONS BELOW

  The judgment of the court of appeals (Pet. App. 1a-10a) is reported at 132
  F.3d 157.[1]  The decision and order of the Federal Labor Relations
  Authority (Pet. App. 11a-23a) is reported at 52 FLRA 475.

JURISDICTION

  The judgment of the court of appeals was entered on October 31, 1997.  The
  petition for a writ of certiorari in Case No. 97-1184 was filed on January
  15, 1998, and the petition for a writ of certiorari in Case No. 97-1243 was
  filed on January 28, 1998.  This Court granted certiorari and consolidated
  the cases on June 1, 1998.  The jurisdiction of this Court rests on 28
  U.S.C. 1254(1).

STATUTES INVOLVED

  The relevant portions of the Federal Service Labor-Management Relations
  Statute, 5 U.S.C. 7101-7135 (1994 & Supp. II 1996) are reproduced in the
  appendix to the petition in Case No. 97-1184 (Pet. App. 24a-36a).

STATEMENT

  A.  The Federal Service Labor-Management Relations Statute
  The Federal Service Labor-Management Relations Statute ("the Statute")
  governs labor-management relations in the federal service.[2]  Under the
  Statute, the responsibilities of the Federal Labor Relations Authority ("the
  Authority") include adjudicating unfair labor practice complaints,
  negotiability disputes, bargaining unit and representational 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 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; Federal/Postal/Retiree Coalition
  v. Devine, 751 F.2d 1424, 1430 (D.C. Cir. 1985).  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.
  With exceptions not relevant here, any person, including a federal agency
  employer, who is aggrieved by a final order of the Authority may seek
  judicial review 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."  5 U.S.C. 7123(a).  The Authority
  may petition for enforcement of its orders in appropriate courts of appeals.
  See 5 U.S.C. 7123(b).
  The instant case concerns the extent of an agency employer's obligation to
  bargain with the exclusive representative of its employees.  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.  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).  However, there is no duty to bargain over 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).  The obligation to bargain in good faith under the Statute does
  not require the agency to agree to a proposal or to make a concession.  5 U.S.C.
  7103(a)(12); see Department of Defense v. FLRA, 659 F.2d 1140, 1147 (D.C. Cir.
  1981) (Department of Defense).   Where the collective bargaining process between
  an agency and a union fails to resolve an issue, the Statute provides for
  resolution through the Federal Service Impasses Panel ("Impasses Panel").[3]  5
  U.S.C. 7119(b); see Council of Prison Locals v. Brewer, 735 F.2d 1497, 1499
  (D.C. Cir. 1984) (Council of Prison Locals).  The Impasses Panel is made up of
  at least seven presidential appointees, and is charged with the responsibility
  of settling bargaining impasses.  5 U.S.C. 7119(c).  Either party may request
  the Impasses Panel to conduct an inquiry into a bargaining impasse.  5 U.S.C.
  7119(b)(1).  The Impasses Panel investigates the impasse and offers
  recommendations or assistance to resolve the deadlock.  5 U.S.C. 7119(c)(5)(A).
  If the parties still cannot reach a settlement, the Impasses Panel may hold
  hearings and take whatever action is necessary and not inconsistent with the
  Statute to resolve the impasse.  5 U.S.C. 7119(c)(5)(B).  When the Impasses
  Panel imposes a term on the parties, it is "binding on such parties during the
  term of the agreement, unless the parties agree otherwise."  5 U.S.C. 7119(c)(5)
  (C).  The Impasses Panel does not have authority to pass judgments on assertions
  of nonnegotiability.  The resolution of negotiability issues are made by the
  Authority.  See American Fed'n of Gov't Employees v. FLRA, 778 F.2d 850, 854
  (D.C. Cir. 1985) (AFGE v. FLRA).
  B.  The Instant Case
    1.  Factual Background
  This case is the most recent of a series of cases decided by the Authority
  and the courts of appeals concerning the extent of a federal agency
  employer's obligation to negotiate over union-initiated proposals offered
  during the term of a collective bargaining agreement.  The National
  Federation of Federal Employees, Local 1309 ("NFFE" or "union") is the
  exclusive bargaining representative for a unit of employees at the U.S.
  Geological Survey, Reston, Virginia ("Survey"), an activity of the United
  States Department of the Interior (Pet. App. 12a-13a).  During negotiations
  of a collective bargaining agreement, the union offered the following
  proposal:
  Article 7. Section 2.b.  Union-initiated Bargaining.  The Union may request and
  the Employer will be obliged to negotiate on any negotiable matters not covered
  by the provisions of this agreement.
  (Pet. App. 12a).  The Survey refused to negotiate over the proposal, contending
  that the proposal was not within its statutory duty to bargain (Pet. App. 13a).
  In response, NFFE filed an unfair labor practice charge with the Authority.
  As relevant here, the Authority held that the proposal was within the
  Survey's obligation to bargain and that the Survey committed unfair labor
  practices when it refused to negotiate over the proposal (Pet. App.
  17a-19a).  Under the Statute, it is an unfair labor practice to refuse to
  bargain over a proposal that is substantially identical to one previously
  found negotiable by the Authority (Pet. App. 16a).  The Authority found that
  the proposal at issue was substantially identical to one found within the
  obligation to bargain in Merit Sys. Protection Bd. Prof'l Ass'n and Merit
  Sys. Protection Bd., Washington, D.C., 30 FLRA 852 (1988) (MSPB)(Pet. App.
  16a-17a).  Further, the Authority rejected the Survey's arguments that the
  union's proposal was inconsistent with the Statute (Pet. App. 17a-18a).
  On review, the Fourth Circuit reversed the Authority, finding that union-
  initiated bargaining during the term of a collective agreement is "contrary
  to the Statute" (Pet. App. 6a).  The Fourth Circuit's decision was written
  against an extensive background of conflicting administrative and judicial
  precedent.  Because the court's decision can best be understood in this
  context, a history of the relevant precedent is provided prior to analyzing
  the court's opinion in the instant case.
    2.  Relevant Administrative and Judicial Precedent
      a.  The D.C. Circuit's Decision in NTEU v. FLRA
  The Authority first considered an agency's obligation to bargain over union-
  initiated midterm proposals in Internal Revenue Serv., 17 FLRA 731 (1985)
  (IRS I).  There the Authority determined that Congress intended to limit the
  obligation to bargain over union-initiated proposals to situations where the
  parties were negotiating a comprehensive term collective bargaining
  agreement.  Id. at 735-36.
  On review, the D.C. Circuit set aside the Authority's decision and remanded
  the case to the Authority.  National Treasury Employees Union v. FLRA, 810
  F.2d 295 (D.C. Cir. 1987) (NTEU v. FLRA).  Relying on private sector
  precedent and congressional intent to encourage and promote collective
  bargaining in the federal sector, the court held that the obligation to
  bargain under the Statute extends to union-initiated midterm proposals.  Id.
  at 301.  The court found that the Statute does not distinguish midterm
  bargaining from any other type of bargaining in terms of the mutual
  obligation to negotiate in good faith.  Id.  Further, the court stated that,
  when enacting the Statute, Congress was aware of "clear and long-established
  [private sector] precedent that the duty to bargain extends also to midterm
  proposals initiated by either management or labor, provided the proposals do
  not conflict with the existing agreement."  Id. at 299 (citing Jacobs Mfg.
  Co., 94 NLRB 1214 (1951), enforced, 196 F.2d 680 (2d Cir. 1952)).
  On remand, the Authority adopted the reasoning of the D.C. Circuit and held
  that an agency is obligated to bargain during the term of a collective
  bargaining agreement on negotiable union proposals concerning matters not
  contained in or covered by the term agreement unless the union has waived
  its right to bargain about the subject matter involved.  Internal Revenue
  Serv., 29 FLRA 162, 166 (1987) (IRS II).  The D.C. Circuit subsequently
  denied a suggestion for initial hearing in banc filed by the Internal
  Revenue Service after the Authority sought enforcement of its order in IRS
  II.  FLRA v. Internal Revenue Serv., 838 F.2d 567 (D.C. Cir. 1988) (FLRA v.
  IRS).  In a concurring opinion to the per curium denial, Judge Edwards,
  joined by Judge Silberman, endorsed the Authority's conclusions and
  rationale concerning the right to engage in midterm bargaining, specifically
  stating that the Authority properly applied private sector precedent.  Id.
  at 568-69.
      b.  The Fourth Circuit's Decision in SSA v. FLRA
  After IRS II, the Authority continued to hold that agency employers are
  obligated to bargain over union-initiated midterm proposals.  See, e.g.,
  Missouri Nat'l Guard, Office of the Adjutant Gen., Jefferson City, Missouri,
  31 FLRA 1244 (1988).   However, the Authority's construction of this aspect
  of the Statute was challenged in the Fourth Circuit in Social Security
  Admin. v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v. FLRA).  The Fourth
  Circuit expressly disagreed with the reasoning of the Authority and the D.C.
  Circuit, concluding that "union-initiated midterm bargaining is not required
  by the [S]tatute and would undermine the congressional policies underlying
  the [S]tatute."  Id. at 1281.  The court, on examining the text of the
  Statute and its legislative history, concluded that the mutual obligation to
  bargain in good faith "arises as to only one, basic agreement."  Id. at
  1284-85.   Further, the Fourth Circuit stated that the Authority's reliance
  on private sector precedent was inappropriate in this context.  Id. at
  1286-88.  Finally, the court held that midterm bargaining undermined the
  Statute's goal of promoting an effective and efficient government.  Id. at
  1288-90.
  Despite the Fourth Circuit's decision, the Authority adhered  to its view
  expressed in IRS II that the duty to bargain extends  to union-initiated
  midterm proposals.  See, e.g., Air Force Logistics Command, Wright-Patterson
  Air Force Base, Ohio, 45 FLRA 1290 (1992); U. S. Patent and Trademark
  Office, 45 FLRA 1090 (1992), rev'd, 991 F.2d 790 (4th Cir. 1993) (Table).
    c.  The Fourth Circuit's Decision in Energy v. FLRA
  In U. S. Department of Energy, Washington, D.C., 51 FLRA 124 (1995)
  (Department of Energy), the Authority, and in turn the Fourth Circuit, was
  presented with the issue of midterm bargaining in a new context.  In
  resolving a bargaining impasse, the Impasses Panel imposed the following
  provision in a contract between a subordinate activity of the Department of
  Energy and the exclusive representative of the activity's employees:
  The Employer will be obligated to bargain in good faith on any negotiable Union-
  initiated proposals concerning matters that are not contained in or covered by
  the collective-bargaining agreement, unless the Union has waived its right to
  bargain about the subject matter involved.
  51 FLRA at 125.  On review of the contract, the Department of Energy disapproved
  the provision as being contrary to law, citing SSA v. FLRA.  Id.  The union
  filed an unfair labor practice charge with the Authority, contending that the
  agency's disapproval was improper.[4]  Id. at 124.
  On alternative grounds, the Authority rejected the Department of Energy's
  assertion that, under the authority of SSA v. FLRA, the disputed provision
  was contrary to law.  Id. at 127-28.  First, the Authority found that SSA v.
  FLRA addressed only whether, apart from any contractual obligation, an
  agency is mandated under the Statute to engage in midterm bargaining.  Id.
  at 127.  SSA v. FLRA did not address the negotiability of a contract
  provision for union-initiated midterm bargaining.  Thus, in the Authority's
  view, SSA v. FLRA did not compel a finding that the contractual provision
  was inconsistent with law.  Id. at 127-28.  The Authority then concluded
  that the provision was not inconsistent with any provision of applicable
  law, rule, or regulation.  Id. at 129.
  Alternatively, the Authority noted that it had respectfully declined to
  follow the Fourth Circuit's SSA v. FLRA decision and has continued to hold
  that agencies are required under the Statute to engage in midterm bargaining
  over union-initiated proposals.  Id. at 127 n.4.  Accordingly, the Authority
  found that although the negotiability of the provision did not depend on
  finding a statutory obligation to bargain midterm, the proposal did restate
  the statutory obligation and was negotiable on that ground as well.  Id. at
  128 n.5 (citing MSPB, 30 FLRA at 859-60 (1988)).
  The Fourth Circuit granted the Department of Energy's petition for review
  and reversed the Authority's decision.  Department of Energy v. FLRA, 106
  F.3d 1158 (4th Cir. 1997) (Energy v. FLRA).  Although recognizing that the
  question of whether the Statute imposes a duty differs from the question of
  whether an agency must bargain regarding a clause in a collective bargaining
  agreement, the court found that midterm bargaining is inconsistent with the
  Statute because it is "at odds with the policies underlying [the Statute]
  and is wholly contrary to congressional intent."  Id. at 1164.  The court
  further held that finding the provision at issue negotiable "would
  effectively vitiate [SSA v. FLRA]."  Id. at 1163.  The court reasoned that
  because the Impasses Panel adheres to the Authority's interpretation of the
  Statute concerning the obligation to bargain midterm, it would be unlikely
  that the Impasses Panel would ever fail to impose a midterm bargaining
  provision on an agency.  Id. at 1163-64.  Thus, the court concluded, "a
  union could circumvent [SSA v. FLRA] by the mere expedient of negotiating to
  impasse on a midterm bargaining provision."  Id. at 1164.
    3.  The Decision of the Court of Appeals in the Instant Case
  While Energy v. FLRA was pending before the Fourth Circuit, but before the
  case was decided, the Authority issued its decision and order in the instant
  case (Pet. App. 11a-23a).  As noted above (p.  , supra), the agency employer
  here refused to bargain over a proposal substantially identical to that at
  issue in Department of Energy.  Expressly relying on Department of Energy,
  the Authority found that the proposal was consistent with law and within the
  agency's obligation to bargain (Pet. App. 17a-18a).  Accordingly, the
  Authority found that the refusal to bargain was an unfair labor practice
  (Pet. App. 21).
  The Department of the Interior petitioned the Fourth Circuit for review.
  Finding the case controlled by SSA v. FLRA and Energy v. FLRA, the court
  granted the petition for review and denied the Authority's cross-application
  for enforcement (Pet. App. 10a).  The court found no meaningful distinction
  between the legality of a midterm bargaining requirement imposed by the
  Impasses Panel as in Energy v. FLRA, and an agency's obligation to negotiate
  over a requirement to bargain midterm (Pet. App. 8a-10a).  Accordingly, the
  court found the union's proposal nonnegotiable (Pet. App. 10a).  In so
  concluding, the court recognized "the difficulties which the conflicting
  decisions present," but noted that the "recourse for resolution must be
  sought elsewhere" (Pet. App. 10a).

SUMMARY OF ARGUMENT

  This case concerns the extent of an agency employer's obligation under the
  Statute to bargain over union-initiated midterm proposals.  The Authority,
  the agency charged with administering the Statute, has concluded that the
  Statute obligates an agency to bargain during the term of a collective
  bargaining agreement over union-initiated proposals concerning matters not
  contained in or covered by the agreement.  As a consequence, the Authority
  found in the instant case that during term negotiations an agency was
  required to bargain over a proposal that would obligate it to bargain over
  union-initiated proposals offered during the life of the agreement.
  The issue of midterm bargaining has been addressed by the D.C. and the
  Fourth Circuits.  Both courts have concluded that the Statute does not
  expressly address midterm bargaining.  However, after examining the terms of
  the Statute, its legislative history, and its overall goals and purposes,
  these courts have reached diametrically opposed conclusions.  The D.C.
  Circuit holds, as the Authority does, that an agency is obligated to bargain
  over union-initiated midterm proposals.  In stark contrast, the Fourth
  Circuit has ruled that an agency is not required to bargain over union-
  initiated midterm proposals, and moreover, is prohibited from agreeing to
  engage in midterm bargaining.  The Fourth Circuit's holding that a union may
  not obtain the right to bargain midterm through the collective bargaining
  process is an extension of its earlier decision that the Statute does not
  require midterm bargaining.
  I.  The Authority's decision in the instant case should be upheld because
  the Authority has reasonably concluded that the Statute requires an agency
  to bargain over union-initiated midterm proposals that are not contained in
  or covered by the existing agreement, and the union's proposal merely
  restates the statutory obligation.  The Authority's conclusion finds
  significant support in the language of the Statute.  Specifically, the
  Statute provides an expansive duty to bargain over conditions of employment
  without restrictions with regard to the circumstances under which the
  obligation arises.  See 5 U.S.C. 7103(a)(12), 7114(a)(4).  In addition, even
  if the Statute is viewed as silent or ambiguous on the issue of midterm
  bargaining, the Authority's reasoned view is entitled to deference under
  Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
  837 (1984).
  Although recognizing that the Statute, by its terms, does not restrict
  midterm bargaining, the Fourth Circuit has found "suggestions" that Congress
  did not mandate union-initiated midterm bargaining.  SSA v. FLRA, 956 F.2d
  at 1284.  Not only has that court failed to accord the Authority proper
  deference in interpreting the Statute, but its own conclusions are based on
  misreadings of the relevant authorities.  The court's specific and selective
  reliance on a reference in the Statute to "a" collective bargaining
  agreement in section 7114(a)(4) in concluding that the obligation to bargain
  extends only to a single basic agreement is contrary to accepted canons of
  statutory construction that provide that, as a rule, terms introduced by "a"
  apply to multiple entities.  See 2A Sutherland, Statutory Construction,
  47.34 (5th ed. 1992).
  Further, nothing in the Statute's legislative history or the precedent under
  the Executive Order practice which preceded enactment of the Statute support
  the Fourth Circuit's interpretation of the Statute.  The Fourth Circuit
  mistakenly relies on an ambiguous fragment from the Senate Report that
  accompanied a bill that was never enacted into law.  With respect to the
  practice under the Executive Order, there is no authoritative precedent that
  establishes that midterm bargaining was not required under the Order.
  Further, and in any event, Congress intended that the Authority and the
  courts would not be bound by Executive Order practice, but were to take a
  fresh look at federal sector labor relations under the Statute.  See INS v.
  FLRA, 855 F.2d 1454, 1461 (9th Cir. 1988).
  The Authority's interpretation of the Statute is also consistent with well-
  established private sector precedent developed under the National Labor
  Relations Act, the legislation upon which the Statute was modeled.  An
  employer's obligation to bargain over union-initiated midterm proposals that
  are not covered by an existing agreement has been an established part of the
  fabric of labor law for over 40 years.  See NLRB v. Jacobs Mfg. Co., 196
  F.2d 680, 683 (2d Cir. 1952); see also NTEU v. FLRA, 810 F.2d at 300.
  Lastly, the Authority's interpretation furthers the Statute's dual goals of
  encouraging collective bargaining in the federal government and promoting an
  effective and efficient government.  See 5 U.S.C. 7101.  Requiring agencies
  to bargain midterm over matters not covered by an existing agreement permits
  employees to participate through their representatives in important
  workplace decisions.  See 5 U.S.C. 7101 (a)(1).  Ignoring these
  considerations, the Fourth Circuit has instead found midterm bargaining to
  be inconsistent with the Statute's goal of providing for governmental
  efficiency because it will lead to endless bargaining.  The specter of
  endless bargaining envisioned by the court is contradicted by both the
  limited nature of mandatory midterm bargaining and the ability of government
  negotiators to protect the government's interests through the bargaining
  process.  See FLRA v. IRS, 838 F.2d at 568-69.
  II.  Alternatively, and as the Authority properly held in the instant case,
  even if there is no statutory obligation to bargain midterm, nothing in the
  Statute prevents a union from obtaining the right to bargain midterm through
  the collective bargaining process.  A holding that the Statute does not
  require an agency to bargain midterm does not imply that midterm bargaining
  is precluded by the Statute.  See BATF, 464 U.S. at 107 n. 17.  Indeed, if
  the obligation to bargain under the Statute is to be a meaningful one, it
  must extend to matters beyond those guaranteed by statute.
  The Statute creates a broad obligation to bargain only limited by express
  statutory exceptions.  See, e.g., Nuclear Regulatory Comm'n v. FLRA, 895
  F.2d 152, 154 (4th Cir. 1990).  Although the Fourth Circuit has found
  midterm bargaining to be "contrary" to the Statute, it has not identified
  any express statutory provision that prohibits midterm bargaining.  Instead,
  rather than deferring to the Authority on this question as well, the Fourth
  Circuit has concluded only that midterm bargaining is inconsistent with the
  statutory purpose of fostering an effective and efficient government.
  As noted above, the court has exaggerated the extent to which midterm
  bargaining affects governmental operations and ignored the fact that midterm
  bargaining promotes other goals of the Statute.  But even assuming midterm
  bargaining imposes some burdens on agency management, the existence of such
  burdens is insufficient to place a bargaining proposal outside the agency's
  obligation to bargain.  Collective bargaining proposals by their nature
  require agencies to take actions or commit resources they might not
  otherwise have taken or committed.
  Finally, although the Fourth Circuit recognizes that nothing in the Statute
  prohibits an agency from voluntarily engaging in midterm bargaining, the
  court impermissibly concludes that the agency cannot be required to exercise
  that discretion prospectively through collective bargaining.  It is well
  established that where an agency has discretion to act with respect to
  conditions of employment, it has the obligation to bargain over the exercise
  of that discretion.  See Department of the Treasury, U.S. Customs Serv. v.
  FLRA, 836 F.2d 1381, 1384 (D.C. Cir. 1988).

ARGUMENT

I.  The Authority Properly Determined That an Agency Is Obligated Under the
Statute to Bargain over Union-Initiated Midterm Proposals and a Bargaining
Proposal That Restates That Obligation Is Negotiable
  One of the Authority's bases for finding the union's midterm bargaining
  proposal negotiable is that an agency is obligated under the Statute to
  bargain over union-initiated midterm proposals, and the proposal at issue in
  this case merely restated that preexisting obligation.  The Fourth Circuit
  had previously rejected the Authority's determination that the Statute
  requires bargaining over union-initiated midterm proposals.  As demonstrated
  below, the Authority's position is supported by the language of the Statute
  and is consistent with its legislative history.  By contrast, the Fourth
  Circuit's contrary position lacks any statutory support.  Moreover, the
  Authority's position is consistent with relevant private sector precedent
  and furthers the Statute's purposes and goals.  Accordingly, the Court
  should affirm the Authority's holding that the duty to bargain in good faith
  under the Statute includes the duty to bargain over union-initiated midterm
  proposals.[5]
  A.  The Authority's Interpretation is Supported by the Language of the
  Statute and Entitled to Deference
    1.  The Statute Establishes a Broad Duty to Bargain
  Although the Statute does not expressly address midterm bargaining, there is
  considerable support in its language for the proposition that agencies are
  obligated to bargain over union-initiated midterm proposals.  Indeed, the
  Statute establishes a broad duty to bargain and imposes no express limits on
  the circumstances under which the obligation to bargain over negotiable
  conditions of employment arises.[6]
  Specifically, the obligation to bargain, set out in section 7114(a)(4),
  provides that "an agency and an exclusive representative shall meet and
  negotiate in good faith for the purposes of arriving at a collective
  bargaining agreement . . . ."  A "collective bargaining agreement" is "an
  agreement entered into as a result of collective bargaining pursuant to the
  provisions of [the Statute]."  5 U.S.C. 7103(a)(8).  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[.]"  5 U.S.C. 7103(a)(12).[7]  Notably,
  these broadly worded provisions do not exclude midterm bargaining.  To the
  extent the Fourth Circuit has concluded otherwise, it misapprehends the
  Statute.
    2.  Deference Is Owed to the Authority's Interpretation
  Even if one were to conclude from the absence of an express reference to
  midterm bargaining that the Statute is silent or ambiguous on the issue, the
  Authority's well-reasoned position is worthy of deference.[8]  Where, as
  here, the Authority is interpreting the statute that it is charged with
  implementing, its conclusions are reviewed under the standard set forth in
  Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
  837 (1984) (Chevron).  See Fort Stewart Schools v. FLRA, 495 U.S. 641,
  644-45 (1990) (Fort Stewart Schools); see also 5 U.S.C. 7105.  Under
  Chevron, if the relevant statutory language is clear, the Court "must give
  effect to the unambiguously expressed intent of Congress."  Fort Stewart
  Schools, 495 U.S. at 645 (quoting Chevron, 467 U.S. at 842-43).  If, on the
  other hand, the relevant statutory provisions are "silent or ambiguous" on
  the point at issue, the Court should affirm the Authority's conclusions if
  they are based on a "permissible construction of the Statute."  Id.
  Deference to the Authority is "especially appropriate" where the Authority
  is required to fill in any statutory gaps.  Department of Health and Human
  Servs. v. FLRA, 976 F.2d 1409, 1413 (D.C. Cir. 1992) (citing Chevron, 467
  U.S. at 843-44).  The Authority is to "exercise its special function of
  applying the general provisions of the [Statute] to the complexities of
  federal labor relations."  BATF, 464 U.S. at 97; see also NLRB v. Curtin
  Matheson Scientific, Inc., 494 U.S. 775, 787 (1990) (the NLRB must have the
  authority to fill the interstices of the broad statutory provisions) (Curtin
  Matheson).
    3.  The Fourth Circuit Has Improperly Failed to Defer to the Authority
    and Has Misinterpreted the Statute
  In resolving the midterm bargaining issues, the Fourth Circuit has
  repeatedly failed to grant the Authority the deference due under Chevron.[9]
  Although acknowledging in SSA v. FLRA that the Statute does not specifically
  address midterm bargaining, the Fourth Circuit nonetheless reversed the
  Authority based only on "suggest[ions] that bargaining over midterm union
  proposals was not mandated by Congress."  956 F.2d at 1284.  As we
  demonstrate below, the "suggestions" the SSA v. FLRA court found are based
  on misreadings and misapplications of the relevant authorities.  However,
  even if these suggestions have any merit, under the appropriate standard of
  review they are insufficient to overcome the Authority's well-reasoned
  conclusions concerning an agency's obligation to bargain over union-
  initiated midterm proposals.  See Department of the Treasury v. FLRA, 494
  U.S. 922, 928 (1990) (Court must accept the Authority's construction if it
  is a reasonable one, even though it is not the one the court would have
  arrived at).
  In SSA v. FLRA, the Fourth Circuit mistakenly finds support for its
  conclusion that there is no obligation for an agency to bargain over union-
  initiated midterm proposals from the fact that section 7114(a)(4) refers to
  "collective bargaining agreement" in the singular.  956 F.2d at 1284.  From
  nothing more than that section's reference to "a" collective bargaining
  agreement, the court concludes that "the statutory assumption seems to have
  been that of one comprehensive agreement that serves to ensure workplace
  stability during its designated term."  Id.  It is an unwarranted leap of
  logic to infer from the Statute's use of the indefinite article "a," a
  comprehensive policy pronouncement concerning collective bargaining in the
  federal government.
  In a footnote, the court acknowledges that another section of the Statute
  references the obligation to negotiate "collective bargaining agreements,"
  but dismisses this section by stating that "we view this reference merely as
  a general statement that contemplates successive, not overlapping labor
  contracts."  SSA v. FLRA, 956 F.2d at 1284 n.1.  However, the court provides
  no justification for inconsistently viewing the reference to a singular
  collective bargaining agreement as indicative of significant policy
  considerations, but the plural reference as merely "a generic statement."
  In light of the absence of more definitive language, the better view is that
  all the references to collective bargaining agreements are generic and
  indefinite with respect to number.  See Johnston v. Penrod Drilling Co., 803
  F.2d 867, 869-70 (5th Cir. 1986) (reference to "a party" in Fed. R. Civ. P.
  68 does not limit application to single defendants (citing 1 U.S.C. 1)); see
  also 2A Sutherland, Statutory Construction, 47.34 (5th ed. 1992) ("It is
  most often ruled that a term introduced by 'a' or 'an' applies to multiple
  subjects or objects unless there is reason to find that singular application
  was intended or is reasonable.").
  The Fourth Circuit also mistakenly relies upon the  "management rights"
  section of the Statute in support of its conclusions concerning midterm
  bargaining.  That section  reserves to agency employers the right to
  establish certain categories of conditions of employment.  5 U.S.C. 7106(a).
  The exercise of those rights is, however, subject to the negotiation of
  "procedures" utilized in the exercise of those authorities, and "appropriate
  arrangements" for adversely affected employees.  5 U.S.C. 7106(b)(2)(3); see
  Department of Defense, 659 F.2d at 1145-46.
  The Fourth Circuit's reliance on section 7106 is flawed in two respects.
  First, the Fourth Circuit misreads subsections (b)(2) and (3) as
  establishing a specific and exclusive midterm bargaining right to be
  exercised only by agency management.  SSA v. FLRA, 956 F.2d at 1284.
  Section 7106 is not, however, the source of the Statute's bargaining
  obligations.  Rather, section 7106 establishes an exception to the broad
  obligation to bargain found in sections 7114 and 7103(a)(12).  See
  Department of Defense, 659 F.2d at 1146.  Accordingly, subsections 7106(b)
  (2) and (3) are not independent grants of a right to bargain but are
  provisos that clarify and/or modify the scope of the reserved management
  rights found in section 7106(a).  See AFGE, Local 2782 v. FLRA, 702 F.2d
  1183, 1186-87 (D.C. Cir. 1983) (Opinion by Judge, now Justice, Scalia).[10]
  Second, to the extent that section 7106 is relevant at all, it could support
  the Fourth Circuit's view that midterm bargaining is limited to management
  initiatives only in those cases where the reserved management rights are at
  issue.  Section 7106 has no effect on the mutual obligation to bargain over
  conditions of employment not involving management rights.
  B.  Neither the Statute's Legislative History Nor Practice Under the
  Predecessor Executive Order Supports the Fourth Circuit's Position
  In SSA v. FLRA, the Fourth Circuit finds its conclusion that midterm
  bargaining is not required by the Statute "confirmed by the Statute's
  legislative history."  956 F.2d at 1284.  However, the court misconstrued
  both the legislative history and the administrative precedent under the
  Executive Order that previously governed federal sector labor relations.
  Specifically, the court has improperly relied on material accompanying the
  Senate bill, which was rejected in favor of the House version of what became
  the Statute, and it has overstated the significance of the Executive Order
  precedent.
    1.  The Fourth Circuit Misconstrued the Senate Report
  Nothing in the Statute's legislative history indicates that Congress
  intended to prohibit union-initiated midterm bargaining in the federal
  sector.  To the contrary, the Authority's position is fully consistent with
  Congress's commitment to the "right of Federal employees to organize and
  bargain collectively, and participate through labor organizations in
  decisions which affect them . . . ."  Joint Explanatory Statement of the
  Committee on Conference, H.R. 1717, 95th Cong., 2d Sess. 127 (1978),
  reprinted in Subcomm. on Postal Personnel and Modernization of the House
  Comm. on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative
  History of the Federal Service Labor-Management Relations Statute, Title VII
  of the Civil Service Reform Act of 1978 at 795 (Comm. Print No. 96-7)
  (Legis. Hist.).
  The Fourth Circuit improperly relies on a single statement, taken out of
  context, from the Senate report that accompanied a bill that was not
  enacted.  See NTEU v. FLRA, 810 F.2d at 299.  The Fourth Circuit cited the
  following passage:
  The parties have a mutual duty to bargain not only with respect to those changes
  in established personnel policies proposed by management, but also concerning
  negotiable proposals initiated by either the agency or the exclusive
  representative in the context of negotiations leading to a basic collective
  bargaining agreement.
  SSA v. FLRA, 956 F.2d at 1284-85, quoting from S. Rep. No. 969, 95th Cong., 2d
  Sess. 104 (1978), reprinted in Legis. Hist. at 764.  According to the court,
  this passage indicates that an agency's duty to bargain arises in only two
  contexts, i.e., during negotiations leading to a "basic collective bargaining
  agreement," and in response to management-initiated midterm changes in
  conditions of employment.  SSA v. FLRA, 956 F.2d at 1285.  Contrary to the
  court's conclusion, this passage does not indicate, let alone establish,
  congressional intent to prohibit midterm bargaining.
  First, as the D.C. Circuit noted, examination of the Senate bill and
  accompanying report is of limited value because the Conference Committee
  adopted the House bill as part of an overall statutory scheme to broaden
  collective bargaining, rather than adopting the more narrow scope of
  collective bargaining provided under the Senate bill.[11]  NTEU v. FLRA, 810
  F.2d at 298-99.    Second, even if reliance on the Senate report would be
  appropriate, the quoted passage is itself ambiguous and does not establish
  what the Fourth Circuit claims.  In that regard, nowhere in the Statute or
  the legislative history is the phrase "a basic collective bargaining
  agreement" defined.  Therefore, it cannot be inferred that the authors of
  this passage intended to limit the mutual obligation to bargain over
  negotiable proposals to a single term agreement.  In addition, the passage
  does not expressly state that there are only two circumstances under which a
  bargaining obligation arises.
  In conclusion, this ambiguous fragment of legislative history cannot be
  relied upon to establish the restrictive view of bargaining found by the
  Fourth Circuit.
       2.  The Fourth Circuit Mistakenly Interprets Precedent Established under
       Executive Order 11,491
  The Fourth Circuit also finds support for its conclusion that union-
  initiated midterm bargaining is not required by the Statute based on the
  practice under Executive Order 11,491, which governed federal sector labor
  relations prior to the enactment of the Statute.  However, the court's
  reliance on Executive Order practice is mistaken for two reasons.  First,
  authoritative support is lacking for the proposition that agencies were not
  obligated to bargain midterm over union-initiated proposals under the
  Executive Order.  Second, even assuming there was no obligation to bargain
  midterm under the Executive Order, Executive Order precedent is of limited
  value in interpreting the Statute.
  The Federal Labor Relations Council (Council) was the body charged with
  interpreting and administering Executive Order 11,491, as amended, § 4(b),
  reprinted in Legis. Hist. at 1343 (Executive Order).  Significantly, the
  Council never addressed the issue of whether union-initiated midterm
  bargaining was required under the Executive Order.  The only Executive Order
  case that specifically addressed union-initiated midterm bargaining involved
  a ruling of the Assistant Secretary of Labor for Labor-Management Relations
  (A/SLMR) that was not reviewed by the Council.  Army and Air Force Exch.
  Serv., Capitol Exch. Region Headquarters, Case No. 22-6657(CA), 2 Rulings on
  Request for Review 561 (Ass't Sec'y of Labor 1976).  Under section 6 of the
  Order, the A/SLMR was to decide unfair labor practice complaints, subject to
  review by the Council.  A single unreviewed decision by the A/SLMR does not
  constitute authoritative precedent concerning Executive Order practice.
  In any event, Executive Order practice is of limited value in interpreting
  the Statute.  Congress intended to "allow both the Authority and the courts
  to disregard the Council's interpretation of the Executive Order."  INS v.
  FLRA, 855 F.2d 1454, 1461 (9th Cir. 1988) (INS v. FLRA); see also NTEU v.
  FLRA, 691 F.2d 553, 562 n.89 (D.C. Cir. 1982) (the Statute's legislative
  history evinces a congressional determination not to bind the Authority to
  decisions made by the Council).  Rather, the Authority was directed to "take
  a fresh and independent approach to federal labor relations."  INS v. FLRA,
  855 F.2d at 1461.
  In contrast, the Fourth Circuit mistakenly found a congressional
  "presumption" to codify Executive Order practices in section 7135(b) of the
  Statute.  SSA v. FLRA, 956 F.2d at 1286.  However, section 7135(b) was not
  intended to make Executive Order precedent binding on the Authority or to
  continue Executive Order practices.  See Department of the Air Force v.
  FLRA, 877 F.2d 1036, 1041 (D.C. Cir. 1989).  Instead, section 7135 was
  merely "intended to prevent the slate from being wiped clean until the
  Authority and the courts could interpret the [Statute] in a manner
  consistent with Congress's intent."  Id. (quoting from INS v. FLRA, 855 F.2d
  at 1461).[12]  As relevant here, section 7135(b) provides that policies and
  decisions issued under the Executive Order "shall remain in full force and
  effect until revised or revoked by the President or unless superseded by
  specific provisions of [the Statute] or by regulations or decisions issued
  pursuant to [the Statute]." (emphasis added).
  C.  The Fourth Circuit Improperly Rejected Relevant Private Sector Precedent
    1.  Private Sector Precedent on Midterm Bargaining Is Relevant to
    Interpreting the Statute
  As the D.C. Circuit emphasized, there is clear and long-standing precedent
  in the private sector that the duty to bargain extends to midterm proposals
  initiated by either management or labor, provided the proposals do not
  conflict with the existing agreement.  See NTEU v. FLRA, 810 F.2d at 299.
  In finding that agency employers are obligated to bargain over union-
  initiated midterm proposals, the Authority  properly relied on this well-
  established precedent.  See IRS II, 29 FLRA at 165; see also NTEU v. FLRA,
  810 F.2d at 300; FLRA v. IRS, 838 F.2d at 568.  As the Authority stated,
  private sector experience is instructive in fashioning an appropriate
  standard for midterm bargaining in the federal sector.
  In finding that collective bargaining in the federal civil service is in the
  public interest, Congress specifically noted the "experience in both private
  and public employment."  5 U.S.C. 7101(a)(1).  Further, the analogy between
  the Statute and the National Labor Relations Act (NLRA) has been recognized
  by this and other courts.  See BATF, 464 U.S. at 92-93; see also Department
  of Justice v. FLRA, 991 F.2d 285, 289 (5th Cir. 1993); Library of Congress
  v. FLRA, 699 F.2d 1280, 1286-87 and n.32 (D.C. Cir. 1983) (Library of
  Congress); NTEU v. FLRA, 732 F.2d 703, 705 (9th Cir. 1984).  These same
  courts have also cautioned that the analogy is not complete and that the
  extent to which precedent developed under the NLRA is instructive in
  interpreting the Statute depends upon the particular statutory provisions
  and legal concepts at issue.  See, e.g., Library of Congress, 699 F.2d at
  1287.  However, the circumstances of this case make private sector practice
  relevant to the interpretation of the Statute.  See NTEU v. FLRA, 810 F.2d
  at 299-300.
  First, application of private sector precedent is particularly appropriate
  in the absence of authoritative precedent or legislative history.  See
  Library of Congress, 699 F.2d at 1286.  Second, private sector precedent is
  relevant where the statutory provisions at issue are similar.  See, e.g.,
  Turgeon v. FLRA, 677 F.2d 937, 939 (D.C. Cir. 1982); cf. Karahalios v. NFFE,
  489 U.S. 527, 534-37 (1989) (when the Statute explicitly provides an
  administrative remedy where the NLRA does not, private sector precedent is
  not applicable).
  Both factors favoring the application of private sector precedent are
  present here.  As discussed above, the Statute's legislative history does
  not provide a definitive answer to the question of whether an agency is
  obligated to bargain over union-initiated midterm proposals.  Moreover, the
  Statute defines the obligation to bargain in good faith in substantially the
  identical manner as does the NLRA.[13]
    2.  The Fourth Circuit's Rationale for Discounting Private Sector
    Precedent Is Flawed
  The Fourth Circuit disagreed with the Authority and the D.C. Circuit with
  respect to the applicability of private sector precedent.  That court found
  that "whatever use private-sector labor law may have in other contexts, we
  do not believe that it is controlling [with respect to union-initiated
  midterm bargaining]."  SSA v. FLRA, 956 F.2d at 1286.  The court proceeded
  to identify what it considered differences between the Statute and the NLRA
  that render the transference of private sector labor law "inappropriate."
  Id. at 1287.  However, the court's rationale for rejecting the relevant
  private sector precedent is flawed.
  The Fourth Circuit's principal reason for finding reliance on private sector
  precedent inappropriate is the absence of a provision in the Statute which
  compares to that portion of section 8(d) of the NLRA limiting the duty to
  bargain midterm.  Section 8(d) provides in part that the duty to bargain in
  good faith "shall not be construed as requiring either party to discuss or
  agree to any modification of the terms and conditions contained in a
  contract for a fixed period, if such modification is to become effective
  before such terms and conditions can be reopened under the provisions of the
  contract."  29 U.S.C. 158(d).  The court determined that because Congress
  "intended bargaining rights to be more limited under the [Statute] than
  under the NLRA, we find it inconceivable that Congress would have omitted
  the § 8(d) limitation on midterm bargaining had Congress in fact intended
  [the Statute] to require such bargaining in the first place."  SSA v. FLRA,
  956 F.2d at 1287.
  The court infers too much from the absence of the section 8(d) limit on
  midterm bargaining.  As initially enacted, the NLRA, like the Statute,
  provided for a broad obligation to bargain without reference to midterm
  bargaining.  The Court found that obligation to require an employer to
  bargain, upon request, with its employees' exclusive representative over all
  terms and conditions of employment whether or not an existing collective
  bargaining agreement bound the parties as to the subject matter at issue.
  See NLRB v. Sands Mfg. Co., 306 U.S. 332, 342 (1939); see also NLRB v.
  Jacobs Mfg. Co., 196 F.2d 680, 683 (2d Cir. 1952) (Jacobs Mfg.).  Congress
  amended section 8(d) in 1947 to specifically limit bargaining during the
  term of an agreement to those matters not contained in the agreement.  See
  Jacobs Mfg., 196 F.2d at 683.  It is this amendment upon which the Fourth
  Circuit relies.
  Without any textual or legislative history support, the Fourth Circuit
  concludes, solely from Congress's omission of the section 8(d) exception to
  midterm bargaining in the Statute, that Congress intended not to permit
  union-initiated midterm bargaining at all.  The court's highly speculative
  inference is unwarranted.  See Brecht v. Abrahamson, 507 U.S. 619, 632
  (1993) (This court is "reluctant to draw inferences from Congress' failure
  to act."); see also United States v. Wells, ___ U.S. ___, 117 S. Ct. 921,
  929 (1997) ("It is at best treacherous to find in Congressional silence
  alone the adoption of a controlling rule of law.").  Indeed, one could
  equally speculate that the absence of language in the Statute comparable to
  the section 8(d) exception signaled Congress's intent to permit unrestricted
  midterm bargaining as had been the case under the NLRA before the amendment
  to section 8(d).
  Further, the Fourth Circuit's reference to "more limited" bargaining rights
  under the Statute is misplaced.  Federal sector bargaining rights are
  limited by the reserved management rights found in section 7106(a) of the
  Statute.  However, section 7106 does not limit the circumstances under which
  a bargaining obligation may arise -- only the subject matters appropriate
  for bargaining.  The fact that certain mandatory subjects of bargaining in
  the private sector are nonnegotiable in the federal sector has no bearing on
  the wholly distinct question of the timing of negotiations.[14]
    3.  The Authority Reasonably Adopted Private Sector Limitations on
    Midterm Bargaining
  On finding no specific statutory warrant for the Authority's "contained in
  or covered by" limitation on midterm bargaining, the SSA v. FLRA court
  stated that the Authority "acted beyond its authority" by grafting this
  exception on to the midterm bargaining obligation in the federal sector.
  956 F.2d at 1289.  The court impermissibly limits the Authority's role in
  this regard.
  The Authority properly developed reasonable and workable rules required to
  implement the general provisions of the Statute concerning the obligation to
  bargain in good faith.  Under section 7105(a)(1) of the Statute, the
  Authority is charged with "provid[ing] leadership in establishing policies
  and guidance relat[ed] to matters under the [Statute]."  In exercising this
  role the Court has noted that the Authority is to "give content to the
  principles and goals set forth in the [Statute]" and apply "the general
  provisions of the Statute to the complexities of federal labor relations."
  BATF, 464 U.S. at 444; see also Beth Israel Hospital v. NLRB, 437 U.S. 483,
  500-501 (1978) (for the NLRB to accomplish its task of applying the NLRA's
  general language to specific circumstances, "it must have authority to
  formulate rules to fill the interstices of the broad statutory provisions").
  Moreover, were the Authority not permitted to fill the statutory gaps with
  reasonable policies and practices, the absence of specific language in the
  Statute limiting midterm bargaining would lead to unconstrained midterm
  bargaining as existed under the NLRA before 1947, a result arguably at odds
  with the stated purposes of the Statute.
     D.  The Authority's Holding Furthers the Purposes and Goals of the Statute
  Applying the rule derived from the private sector, the Authority held that
  the duty to bargain in good faith imposed by the Statute requires an agency
  to bargain during the term of a collective bargaining agreement on
  negotiable union proposals concerning matters that are not contained in the
  agreement, unless the union has waived its right to bargain about the
  subject matter involved.  IRS II, 29 FLRA at 166.  As demonstrated above,
  the Authority's holding is consistent with the language of the Statute, its
  legislative history, and analogous precedent developed in the private sector
  under the NLRA.  Further, the Authority's position is consistent with the
  purposes and goals of the Statute.
  Congress found that collective bargaining furthers stability by allowing
  employees to participate through labor organizations in workplace decisions
  that affect them, and facilitates and encourages the settlement of disputes
  between employees and their employers involving conditions of employment.  5
  U.S.C. 7101(a).
  As this Court has recognized regarding the private sector, collective bargaining
  does not end with the negotiation of a term agreement, but is a continuing
  process.  Conley v. Gibson, 355 U.S. 41, 46 (1957) (Collective bargaining
  involves day-to-day adjustments in the contract and "resolution of problems not
  covered by existing agreements.").  Indeed, workplace stability is enhanced by
  the flexibility to deal with unforeseen contingencies that may arise during the
  term of an agreement.  See NL Industries v. NLRB, 536 F.2d 786, 790 n.5 (8th
  Cir. 1976).    The Fourth Circuit, however, ignores these considerations and
  instead found that midterm bargaining would contravene the Statute's goal of
  providing an effective and efficient government (citing 5 U.S.C. 7101(b)).  The
  court reaches this conclusion by finding that government stability and
  efficiency would be adversely affected by midterm bargaining because it would
  expose government agencies to an endless bargaining obligation that would result
  in the continuous expenditure of resources.  SSA v. FLRA, 956 F.2d at 1288.
  The Fourth Circuit errs by failing to recognize the limited scope of the
  midterm bargaining obligation and the ability agency managers have to
  protect the government's interests through the bargaining process.  The
  obligation to bargain midterm extends only to matters not contained in or
  covered by the term agreement.  IRS II, 29 FLRA at 166; see also U.S. Dep't
  of Health and Human Servs., Social Sec. Admin., Baltimore, Md., 47 FLRA
  1004, 1018 (1993) (DHHS).  Agency management can protect itself against an
  extended midterm bargaining obligation by ensuring that the term agreement
  is comprehensive in scope.[15]  Any matter not contained in or covered by
  the agreement that was nonetheless fully explored and discussed during term
  negotiations would similarly be removed from the scope of allowable midterm
  bargaining.  See IRS II, 29 FLRA at 167 (1987).
  Contrary to the Fourth Circuit's suggestion, the union does not have the
  ability to either limit or control the breadth of negotiations.  Management
  negotiators have the right to raise any and all negotiable issues at term
  bargaining.  See AFGE, Interdepartmental Local 3723, AFL-CIO, 9 FLRA 744,
  754-55 (1982), aff'd 712 F.2d 640 (D.C. Cir. 1983) (union commits unfair
  labor practice when it refuses to bargain over mandatory subject of
  bargaining).  If either party refuses to agree to include a negotiable
  matter in the collective bargaining agreement the services of the Impasses
  Panel can be invoked to resolve the impasse.  Agencies are also free to
  negotiate broad "zipper" clauses through which unions contractually agree to
  generally waive their right to initiate midterm bargaining or to bargain
  other provisions restricting negotiations on particular issues.  IRS II, 29
  FLRA at 166-167.[16]
  In sum, "[f]ederal agency employers who wish to avoid continuous bargaining
  during the term of an agreement are free, just as are their private sector
  counterparts, to negotiate contract provisions to ensure this result."  FLRA
  v. IRS, 838 F.2d at 570 (concurring opinion of Edwards, J).  The concerns of
  employer agencies and the Fourth Circuit in this regard "raise nothing more
  than a tempest in a teapot."  Id.
II.  Even If There Is No Statutory Obligation to Bargain Midterm, a Contract
Provision Providing for Midterm Bargaining Is Negotiable Because It Is Not
Inconsistent with Applicable Law, Rule, or Regulation
  For the reasons provided above, the Court should hold that an agency is
  obligated to bargain over union-initiated proposals that are not contained
  in or covered by the term agreement.  But, even if the Fourth Circuit's SSA
  v. FLRA decision is correct in holding that the Statute does not require an
  agency to bargain over union-initiated midterm proposals, it erred in its
  subsequent decisions in Energy v. FLRA and the instant case where it held
  that a union cannot acquire the right to bargain midterm through the
  bargaining process itself.
  Under section 7117(a) of the Statute, an agency employer is obligated to
  bargain over all conditions of employment unless the bargaining proposal is
  inconsistent with law, a government-wide regulation, or an agency regulation
  for which a compelling need exists.  The Fourth Circuit, as well as other
  courts of appeals, has recognized that the Statute imposes a "broadly
  defined and expansive duty to bargain over conditions of employment that is
  subject only to the express statutory exceptions."  Nuclear Regulatory
  Comm'n v. FLRA, 895 F.2d 152, 154 (4th Cir. 1990) (internal citations
  omitted); see also Library of Congress, 699 F.2d at 1285; Department of the
  Navy, Military Sealift Command v. FLRA, 836 F.2d 1409, 1413 (3d Cir. 1988);
  IRS v. FLRA, 717 F.2d 1174, 1176 (7th Cir. 1983); Navy Public Works Ctr.,
  Pearl Harbor, Honolulu, Hawaii v. FLRA, 678 F.2d 97, 98 (9th Cir. 1982).
  As the Authority correctly held, a contractual proposal requiring that the
  agency bargain over union-initiated proposals concerning matters not
  contained in or covered by the term agreement does not fall within an
  express statutory exception to the bargaining obligation, i.e., it is not
  inconsistent with any law, government-wide regulation or agency rule for
  which a compelling need exists.  Accordingly, it is within the agency's
  obligation to bargain.  Neither the Fourth Circuit's decision in SSA v.
  FLRA, nor any reasonable extension of that decision, compels a different
  result.[17]
  A.  The Obligation to Bargain Is Not Delimited by the Rights Granted under
  the Statute
  It is well established that an agency may be obligated to bargain over
  matters beyond those guaranteed by the Statute.  For example, in National
  Treasury Employees Union and U.S. Dep't of the Treasury, Bureau of Alcohol,
  Tobacco and Firearms, Washington, D.C., 43 FLRA 1442 (1992), remanded on
  other grounds, 30 F.3d 1510 (D.C. Cir. 1994), the Authority found negotiable
  a proposal that provided that agency investigators advise employees of
  representational rights under section 7114(a)(2)(B) of the Statute.  There
  the Authority expressly rejected the agency's claim that the proposal was
  nonnegotiable because it provided rights to employees that exceeded those
  granted in the Statute.  43 FLRA at 1445; see also Department of the Air
  Force, Scott Air Force Base, Ill., 34 FLRA 1129, 1136 (1990) (although union
  does not have statutory right to advertise in agency-controlled newspaper,
  it may establish such a right through contract); United States Dep't of
  Health and Human Servs. v. FLRA, 976 F.2d 229 (4th Cir. 1992) (collective
  bargaining agreement or past practice can extend union rights to workplace
  communication beyond that guaranteed by Statute).  Indeed, were the universe
  of bargainable matters limited to preexisting statutory entitlements, the
  right to engage in collective bargaining under the Statute would be rendered
  meaningless.
  That a union may bargain for rights in excess of those provided by law has
  also been recognized by this Court.  In finding that the Statute did not
  entitle union negotiators to  travel and per diem payments, the Court stated
  that "unions may presumably negotiate for such payments in collective
  bargaining."  BATF, 464 U.S. at 107 n.17.  Subsequent to BATF, the Authority
  found travel and per diem for union negotiators to be negotiable because it
  was not inconsistent with applicable law or regulation.  See National
  Treasury Employees Union and Dep't of the Treasury, U.S. Customs Serv., 21
  FLRA 6, 7 (1986), enforced, 836 F.2d 1381 (D.C. Cir. 1988).
  This case is in the same posture.  A holding that the Statute does not
  require an agency to bargain over union-initiated midterm proposals does not
  imply -- much less dictate -- that midterm bargaining is precluded by the
  Statute.  However, as discussed immediately below, the Fourth Circuit
  incorrectly went on to find that any union-initiated midterm bargaining is
  "contrary to the [Statute]."  (Pet. App. 6a (citing Energy v. FLRA, 106 F.3d
  at 1163)).
  B.  Union-Initiated Midterm Bargaining Is Not Inconsistent with the Statute
  or Any Other Law or Applicable Regulation
  In Energy v. FLRA, which formed the basis of the court of appeals' decision
  in the instant case, the Fourth Circuit held that a proposal providing for
  union-initiated bargaining during the term of the agreement is outside the
  agency's obligation to bargain.  106 F.3d at 1158-59.  The Energy v. FLRA
  court found that: 1) its decision in SSA v. FLRA held not only that midterm
  bargaining is not mandated by the Statute, but that it is contrary to the
  Statute; 2) finding midterm bargaining to be negotiable would "effectively
  vitiate [SSA v. FLRA]" because in the event of an impasse, the Impasses
  Panel would always impose a clause requiring midterm bargaining; and 3) a
  proposal is nonnegotiable if it is "at odds with the policies underlying a
  statute" even if the proposal does not contravene a specific statutory
  provision.  106 F.3d at 1163-64.  The Fourth Circuit is in error on each of
  these findings.  Finally, in the instant case, the court recognizes that
  there is no legal impediment to an agency engaging in midterm bargaining
  (Pet. App. 9a, 10).  The court, however, implausibly holds that while an
  agency may participate in midterm bargaining on a case-by-case basis, it may
  not agree to do so in advance through the collective bargaining process.
    1.  A Bargaining Proposal Providing for Union-Initiated Midterm
    Bargaining Is Not Inconsistent with the Statute or Any Other Law or
    Applicable Regulation
  As discussed above, the Fourth Circuit erred when it determined that midterm
  bargaining is not mandated by the Statute.  Nonetheless, the Fourth Circuit
  panels in Energy v. FLRA and the instant case have compounded the error by
  extending SSA v. FLRA to prohibit unions from negotiating for the right to
  bargain midterm.  Although the SSA v. FLRA court stated that midterm
  bargaining was "contrary" to the Statute, it said so only in the context of
  the statutory question.  That court was not addressing the question of
  whether midterm bargaining could be negotiable.
  The Fourth Circuit errs in extending the holding in SSA v. FLRA -- that
  midterm bargaining would frustrate stability and government efficiency --
  into the negotiability context.  In so doing, the Fourth Circuit has
  conflated a bargaining proposal's desirability with its negotiability.
  As argued above (pp.  ), the Fourth Circuit's policy arguments greatly
  exaggerate the extent to which the availability of midterm bargaining would,
  in fact, hamper government operations.  Further, the court fails to
  recognize that midterm bargaining furthers other purposes of the Statute --
  specifically, the protection of the right of employees to bargain
  collectively and participate through labor organizations in decisions which
  affect them.  5 U.S.C. 7101(a)(1).  But even assuming that union-initiated
  midterm bargaining imposes some burdens on agency operations, such burdens
  would not render the matter nonnegotiable.  See AFGE, Local 1698 and U.S.
  Dep't of the Navy, Naval Aviation Supply Office, Philadelphia, Pa., 38 FLRA
  1016, 1025-26 (1990) (agency's interest in economy to be protected through
  collective bargaining); see also Federal Employees Metal Trade Council, AFL-
  CIO v. FLRA, 778 F.2d 1429, 1432 (9th Cir. 1985) (balancing competing
  interests of employees and agency is what collective bargaining is intended
  to do).
  Meaningful bargaining would be severely restricted and undermined if
  proposals were removed from the scope of bargaining merely because they
  impose some burden on agency management.  Collective bargaining proposals by
  their nature require that the agency take some action, or commit resources
  -- oftentimes in a manner that the agency would not have chosen absent the
  requirements of the proposal.  See National Fed'n of Fed. Employees, Local
  2099 and Dep't of the Navy, Naval Plant Representative Office, St. Louis,
  Mo., 35 FLRA 362, 368 (1990) ("To conclude that a proposal or provision [is
  nonnegotiable] simply because it requires an agency to take some action
  would completely nullify the obligation to bargain because no obligation of
  any kind could be placed on management through negotiations.").
  Considerations such as increased agency costs and disruption concern the
  merits or desirability of a proposal, not a proposal's negotiability.
  Negotiability determinations concern only whether a proposal is inconsistent
  with law or regulation, not whether a proposal is one that ought to be
  implemented.  See  Department of Defense, 659 F.2d at 1157.  The agency is
  free to resist the adoption of any proposal it finds undesirable through the
  collective bargaining process.  See U.S. Naval Ordnance Station, Louisville,
  Kentucky v. FLRA, 818 F.2d 545, 551 n.7 (6th Cir. 1987) (Naval Ordnance
  Station) (finding a proposal negotiable does not mandate its adoption).  As
  the D.C. Circuit has stated, agency negotiators are presumably capable of
  protecting agency interests at the bargaining table.  Department of Defense,
  659 F.2d at 1157.  The collective bargaining system established by Congress
  is not one where the duty to bargain exists only when consistent with the
  agency's convenience or desires.  AFGE v. FLRA, 785 F.2d 333, 338 (D.C. Cir.
  1986).
    2.  The Fourth Circuit's Concern that Permitting Unions to Negotiate for
    Midterm Bargaining Would Effectively Vitiate SSA V. FLRA Will Be
    Rendered Moot by A Meaningful Resolution of this Case
  A central feature of the Fourth Circuit's decision in Energy v. FLRA is its
  conclusion that permitting unions to negotiate for midterm bargaining rights
  would "effectively vitiate [SSA v. FLRA]."  106 F.3d at 1163-64.  The Fourth
  Circuit reasoned that "because the Impasses Panel adheres to the position of
  the Authority that the [agency] has a statutory duty to engage in midterm
  bargaining," the Impasses Panel will always impose a midterm bargaining
  clause.  Id. at 1163-64.  Thus, the Energy v. FLRA court concluded that "a
  union could circumvent [SSA v. FLRA] by the mere expedient of negotiating to
  impasse on a midterm bargaining provision."  Id. at 1164.  The court's
  concerns are, however, unwarranted.
  In the first place, the Fourth Circuit's prediction that the Impasses Panel
  will always impose a midterm bargaining proposal has not proven to be the
  case.[18]  But more significantly, whatever validity the court's concern may
  have once had, it disappears once the current conflict in the circuits is
  meaningfully resolved.  Obviously, if the Court concludes that there is a
  statutory duty to bargain midterm, the question of impasse and Impasses
  Panel involvement effectively becomes moot.  Should the Court conclude that
  there is no statutory obligation to bargain midterm, but find that the
  matter is negotiable, then the Impasses Panel could no longer impose such a
  provision simply because it is a statutory requirement.  Rather, the
  Impasses Panel would resolve any impasse over midterm bargaining on the
  merits of the individual case.  See Council of Prison Locals, 735 F.2d at
  1499; see also National Treasury Employees Union Chapter 83 and Dep't of the
  Treasury, Internal Revenue Serv., 35 FLRA 398, 415 (1990) (citing Veterans
  Admin. Med. Ctr., Tampa, Florida v. FLRA, 675 F.2d 260, 265 n.9 (11th Cir.
  1982)) (the Impasses Panel considers each impasse on its particular facts,
  and considers the "reasonableness" of the proposals at issue in determining
  what contract language will be imposed).[19]
    3.  The Court of Appeals Has Identified No Provision of Law That Would
    Prohibit an Agency from Engaging in Midterm Bargaining
  In Energy v. FLRA, the Fourth Circuit did not find that midterm bargaining
  contravened any specific statutory provision, but rather determined that
  midterm bargaining was be "at odds with the policies underlying [the
  Statute]."  106 F.3d at 1164.  As noted above, however, the Fourth Circuit
  has selectively emphasized certain policy considerations, i.e., its view of
  effective and efficient government, while ignoring others.  But further, by
  measuring individual bargaining proposals against the broad policies of the
  Statute, the court has created a negotiability standard not intended by
  Congress.  Specifically, the court finds that midterm bargaining interferes
  with the public's right to "as effective and efficient a Government as
  possible."  106 F.3d at 1164 n.9. (quoting SSA v. FLRA, 956 F.2d at 1288).
  A negotiability standard premised on the concept that individual proposals
  are negotiable only if they produce effectiveness and efficiency is
  unworkable and not contemplated in the Statute.  As discussed above, the
  bargaining process itself necessarily imposes some burden on agency
  management that might impact on government effectiveness.
  4.  The Union's Proposal Is Negotiable Because Bargaining over Union-
  Initiated Midterm Proposals Is Within the Agency's Discretion
  In the instant case, the Authority ordered the Survey to bargain with NFFE
  over the circumstances under which midterm bargaining could take place.  The
  union's proposal is within the agency's obligation to bargain because
  nothing prohibits an agency from entertaining a union's request to bargain
  during the term of the agreement.  The obligation to bargain is limited in
  that it does not extend to matters beyond an agency's legal authority.  If
  an agency and union should agree on a matter not authorized by law, such an
  agreement is void and unenforceable.  See Department of the Navy, United
  States Marine Corps, 34 FLRA 635, 638-39 (1990) (agreement that required
  agency action inconsistent with law is unenforceable).  On the other hand,
  it is well established that where an agency has discretion under law to act
  with respect to conditions of employment, it has an obligation to bargain
  over the exercise of that discretion.  Department of the Treasury, U.S.
  Customs Service v. FLRA, 836 F.2d 1381, 1384 (D.C. Cir. 1988).[20]
  Applying these principles to the instant case, a proposal authorizing
  midterm bargaining would be outside an agency's obligation to bargain only
  if the agency is without the discretion to engage in midterm bargaining,
  i.e., where such bargaining would be illegal.  Even the Fourth Circuit
  recognizes that there is no support for the proposition that midterm
  bargaining is prohibited by law.  As the court stated, "there may be times
  when an agency might choose to voluntarily enter into midterm bargaining."
  (Pet. App. 10a n.2; see also Pet. App. 9a (agencies are "free to negotiate
  midterm if they so choose.")).  In spite of this concession, the court
  nonetheless concludes that although an agency has the discretion to bargain
  midterm, it need not negotiate over a proposal that would commit it to
  exercising that discretion.  Such a conclusion is unsupportable.  If there
  is no legal impediment to participating in such bargaining, there can also
  be no legal impediment to agreeing, through the collective bargaining
  process, to do so prospectively.
  The court's response is that although an agency can choose to bargain
  midterm, it "may not be required" to do so. (Pet App. 9a, 10a n.2).
  However, the court ignores the fundamental proposition that finding that an
  agency is obligated to bargain over a specific union proposal does not
  "require" the agency to adopt that proposal.  Naval Ordnance Station, 818
  F.2d at 551 n.7.  Should the agency, through the bargaining process, adopt a
  proposal providing for midterm bargaining, it would be "required" to bargain
  midterm only because it agreed to do so.[21]

CONCLUSION

  The judgment of the court of appeals should be reversed and the case should
  be remanded to that court with directions to enforce the Authority's
  order.[22]


  Respectfully submitted,

              DAVID M. SMITH*
                Solicitor

              JAMES F. BLANDFORD
                Attorney

              * Counsel of Record

JULY 1998




IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

Nos. 97-1184, 97-1243

_______________________________

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1309,
PETITIONER

v.

UNITED STATES DEPARTMENT OF THE INTERIOR,
WASHINGTON, D.C., AND
FEDERAL LABOR RELATIONS AUTHORITY


FEDERAL LABOR RELATIONS AUTHORITY,
PETITIONER

v.

UNITED STATES DEPARTMENT OF THE INTERIOR,
WASHINGTON, D.C., AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1309
_______________________________




CERTIFICATE OF SERVICE

It is hereby certified that all parties required to be served have been
served copies of the REPLY BRIEF FOR THE PETITIONER FEDERAL LABOR RELATIONS
AUTHORITY by hand, this 27th day of October, 1998.

SEE ATTACHED SERVICE LIST

                        DAVID M. SMITH
                        Solicitor


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

Seth P. Waxman, Esq.                      Gregory O'Duden, Esq.
Solicitor General                         General Counsel
Room 5614                                 National Treasury Employees Union
Department of Justice                     Washington, D.C.  20530
Counsel for the National Federation
of Federal Employees, Local 1309
901 E Street, N.W.
Suite 600
Washington, D.C.  20036

William Kanter, Esq.                      Laurence Gold, Esq.
Department of Justice                     Counsel for Amici AFGE and AFL-CIO
Appellate Staff                           Bredhoff and Kaiser
Civil Division                            1000 Connecticut Ave. N.W.
601 D Street, N.W.                        Washington, D.C.  20036-5398
Washington, D.C.  20530




[1]      Pet. App. refers to the Appendix in the petition for a  writ of
certiorari filed in Case No. 97-1184.
[2]      The Statute was enacted as Section 701 of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978).  Prior to the enactment of
the Statute, labor-management relations in the federal service were governed by
a program established in 1962 by Executive Order No. 10988, 3 C.F.R. 521
(1959-1963 comp.).  The Executive Order program was revised and continued by
Executive Order No. 11491, 3 C.F.R. 861 (1966-1970 comp.), as amended by
Executive Orders Nos. 11616, 11636, and 11838, 3 C.F.R. 605, 634, 957 (1971-1975
comp.).
[3]      Strikes in the federal sector are forbidden under 5 U.S.C. 7116(b)(7).
[4]      Under section 7114(c) of the Statute, the agency head may review a
collective bargaining agreement to assure that its provisions are consistent
with applicable law, rule, or regulation.  5 U.S.C. 7114(c).  A union may
contest an agency head's disapproval as a negotiability appeal under section
7117(c) of the Statute or as an unfair labor practice under section 7116(a).  5
U.S.C. 7116(a), 7117(c).  See AFGE v. FLRA, 778 F.2d at 855-56.
[5]      Because the Fourth Circuit had previously held in SSA v. FLRA that
there was no statutory duty to bargain midterm, the Authority did not argue in
the instant case or in Energy v. FLRA that the union's proposal for midterm
bargaining was negotiable because it restated a statutory obligation.
Nonetheless, the existence of a statutory obligation remains a ground for the
Authority's decision and is properly before the Court.  The Fourth Circuit based
its decision in Energy v. FLRA and the instant case on the statutory
determinations in SSA v. FLRA.  See Energy v. FLRA, 106 F.3d at 1163-64 ("our
reasoning in [SSA v. FLRA] compels the conclusion that a clause requiring an
agency to engage in union-initiated midterm bargaining is . . . not
negotiable").  The Court will address an issue that is a "predicate to an
intelligent resolution of the question presented."  Caterpillar, Inc. v. Lewis,
___ U.S. ___, 117 S. Ct. 467, 476 n.13 (1996).  Accordingly, the Authority
presses the statutory argument here and is entitled to do so.  See United States
v. Williams, 504 U.S. 36, 44-45 (1992) (petitioner may raise matter where it had
done so in case relied upon by the lower court and did not concede in the
current case the correctness of that precedent). Id. at 44-45.
  Moreover, resolution of the underlying statutory question is necessary to
  finally resolve a significant and recurring issue in federal sector labor
  relations.  See City of St. Louis v. Praprotnick, 485 U.S. 112, 120-21
  (1988) (deciding a question that is important and likely to recur will not
  undermine the policy of judicial economy).
[6]      As will be discussed infra, the Statute does limit the subjects over
which an agency employer is obligated to bargain. But limiting the subjects that
can be bargained is different from limiting the circumstances under which an
obligation to bargain arises.
[7]      As we discuss (p. , infra), the Statute's definition of collective
bargaining is substantially the same as that found in the National Labor
Relations Act.
[8]      Both courts to address the issue have noted that the Statute does not
mention midterm bargaining per se. See SSA v. FLRA, 956 F.2d at 1284 ("the
textual analysis [of the Statute] is not definitive in this case, for the
[Statute] does not explicitly discuss union-initiated midterm bargaining"); see
also NTEU v. FLRA, 810 F.2d at 298 (text of the Statute "neither specifies nor
distinguishes midterm bargaining, union-initiated bargaining, and any other type
of bargaining").
[9]      The Authority's position here is entitled to deference even though it
formerly held a different one.  See Curtin Matheson, 494 U.S. at 787; see also
NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-66 (1975) ("To hold that the
Board's earlier decisions froze the development of this important aspect of the
national labor law would misconceive the nature of administrative decision
making.").
[10]      As the D.C. Circuit noted, the management rights section demonstrates
that Congress intended to protect government interests by limiting the subjects
of bargaining.  There is no indication that Congress also intended to restrict
the circumstances under which a bargaining obligation arises.  See NTEU v. FLRA,
810 F.2d at 301.
[11]          See, e.g., 124 Cong. Rec. 29198 (1978) (remarks of W. Ford) (scope
of bargaining under section 7106 to be substantially broader under Udall
substitute than under Exec. Order No. 11,491, its immediate predecessor)
reprinted in Legis. Hist. at 954.
[12]      In SSA v. FLRA, the Fourth Circuit noted that in IRS I, the Authority
had relied on Executive Order precedent and that although the Authority
subsequently repudiated IRS I, it never specifically rejected its Executive
Order findings.  956 F.2d at 1286.  However, in IRS II the Authority clearly
rejected the reasoning of IRS I and stated that previous Authority decisions
inconsistent with the conclusion that midterm bargaining was mandatory under the
Statute "will no longer be followed."  IRS II, 29 FLRA at 167.  IRS II is
reasonably read as a total repudiation of IRS I.
[13]      Compare section 7103(a)(12) of the Statute (Pet App. 25a) with section
8(d) of the NLRA, 29 U.S.C. 158(d).  Although section 8(d) provides for matters
applicable only to the private sector, its basic definition of collective
bargaining parallels that found in section 7103(a)(12).  As relevant here,
section 8(d) defines the obligation to bargain collectively as:
the performance of the mutual obligation of the employer and the representative
of the employees to meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of employment, or the
negotiation of an agreement, or any question arising thereunder, and the
execution of a written contract incorporating any agreement reached if requested
by either party, but such obligation does not compel either party to agree to a
proposal or require the making of a concession.
  As discussed infra, section 8(d), as amended, unlike the Statute, also
  specifically addresses midterm bargaining.
[14]      Somewhat inconsistently, in another part of its opinion the Fourth
Circuit recognizes the distinction between limiting the topics subject to
bargaining (i.e. the scope of bargaining) and limiting the timing of
negotiations when it rejected the argument that by broadening the scope of
bargaining from the Executive Order, Congress also intended to broaden the
circumstances under which the obligation to bargain arises.  SSA v. FLRA, 956
F.2d at 1285.
[15]      The Authority has recently clarified its application of the "contained
in or covered by" doctrine.  DHHS, 47 FLRA at 1016-18.  A matter is contained in
or covered by an existing agreement if the matter is: (1) expressly contained in
the existing agreement; or (2) inseparably bound up with and thus plainly an
aspect of a subject expressly covered by the agreement.  Id. at 1018.
[16]      The Fourth Circuit suggested that "zipper clauses" are not an adequate
solution to the "problem" because the Authority had not declared them to be
mandatory bargaining subjects.  SSA v. FLRA, 956 F.2d at 1288.  Although the
Authority has not had that specific question before it, it expressed no
reservations about the availability of zipper clauses in IRS II.  Further, the
concurring judges in FLRA v. IRS have opined that, just as in the private
sector, zipper clauses would be mandatory subjects of negotiation in the federal
sector.  838 F.2d at 570.
[17]      In rejecting the Authority's reas