AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE), Council 147, Petitioner, SOCIAL SECURITY ADMINISTRATION, Respondent-Intervenor, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.


Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Case Name:
AMERICAN FEDERATION V FLRA
Case Number: Date Filed:
98-70912 03/03/00


FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
(AFGE), Council 147,
Petitioner,
                                                     No. 98-70912
SOCIAL SECURITY ADMINISTRATION,
                                                     FLRA No.
Respondent-Intervenor,
                                                     54-FLRA-45
v.
                                                     OPINION
FEDERAL LABOR RELATIONS
AUTHORITY,
Respondent.
On Petition for Review of a Decision of the
Federal Labor Relations Authority
Argued and Submitted
December 8, 1999--San Francisco, California
Filed March 3, 2000
Before: Charles Wiggins, Diarmuid F. O'Scannlain, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins
_________________________________________________________________


COUNSEL
Kevin M. Grile (argued), American Federation of Govern-
ment Employees, AFL-CIO, Chicago, Illinois, for the peti-
tioner.
                               2410

David M. Smith (argued) and Ann M. Boehm, Federal Labor
Relations Authority, Washington, D.C., for the respondent.
Alfred R. Mollin (argued), United States Department of Jus-
tice, Washington, D.C., for the intervenor.
_________________________________________________________________
OPINION
HAWKINS, Circuit Judge:
We must decide whether a district office of the Social
Security Administration (the "Agency") committed an unfair
labor practice when it refused to bargain over staffing levels
pursuant to section 7106(b)(1) of the Federal Service Labor-
Management Relations Statute (the "Statute"). Although sec-
tion 7106(b)(1) only provides for bargaining "at the election
of the agency," the American Federation of Government
Employees, AFL-CIO, Council 147 (the "Union") contends
that the President made this election for the Agency through
Executive Order 12871, which directs all agencies to bargain
over section 7106(b)(1) topics. After the Federal Labor Rela-
tions Authority ("FLRA") rejected this argument, the Union
petitioned this court for review. We now affirm the FLRA's
decision and deny the petition for review.
Facts and Procedural Background
The Union is the designated labor representative for
Agency employees in the San Francisco region, including
employees working in the Santa Rosa district office. In Octo-
ber 1994, Union member Steve Matich, a claims representa-
tive, asked to move from one unit to another within the
district office. Matich apparently expected that, if moved, he
would trade places with a claims representative in the other
unit. However, when the Agency's district manager told
Union officials she was considering the transfer, she stated
                               2411

that Matich's transfer, if granted, would not be accompanied
by any other moves.
Because the Union was concerned that a unilateral transfer
would unbalance workloads in the two units, it requested that
no changes be made until the Union and Agency "have bar-
gained to agreement." In making this request, the Union cited
section 7106(b)(1) of the Statute, which provides for bargain-
ing "at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organiza-
tional subdivision, work project, or tour of duty, or on the
technology, methods, and means of performing work. " 5
U.S.C. S 7106(b)(1). Although section 7106(b)(1) does not
give unions a right to bargain unless an agency elects to, the
Union maintained that the President had made this election on
behalf of the Agency through Executive Order 12871 (the
"Order").
The President issued the Order on October 1, 1993. Its pur-
pose, as stated in the opening paragraph, is to involve
"Federal Government employees and their union
representatives" in "achieving the National Performance
Review's Government reform objectives." 58 Fed. Reg.
52201, 52201 (1993). Among the provisions of the Order is
section 2(d), which falls under a heading titled
"Implementation of Labor-Management Partnerships
Throughout the Executive Branch." Section 2(d) states that
"[t]he head of each agency subject to the provisions of Chap-
ter 71 of title 5, United States Code shall . . . . negotiate over
the subjects set forth in 5 U.S.C. S 7106(b)(1), and instruct
subordinate officials to do the same." Id.  at 52202-03.
Section 3 of the Order is titled "No Administrative or Judi-
cial Review." It provides as follows:
      This order is intended only to improve the internal
      management of the executive branch and is not
      intended to, and does not, create any right to admin-
                               2412

      istrative or judicial review, or any other right, sub-
      stantive or procedural, enforceable by a party against
      the United States, its agencies or instrumentalities,
      its officers or employees, or any other person.
Id. at 52203.
After receiving the Union's request to bargain, the Agency
moved Matich to another unit without replacing him. The
Agency informed Union officials that it would negotiate over
the implementation and impact of the transfer, as required by
5 U.S.C. SS 7016(b)(2) and 7106(b)(3),1 but would not bar-
gain over staffing levels. The Union then filed an unfair labor
practice charge pursuant to 5 U.S.C. SS 7116(a)(1) and
7116(a)(5),2 alleging that the Agency committed an unfair
labor practice by unilaterally changing staffing levels without
giving the Union an opportunity to bargain. Both the ALJ and
the FLRA rejected this argument, finding that no unfair labor
practice had occurred because the Order did not constitute an
election for purposes of section 7106(b).3
_________________________________________________________________
1 Section 7106(b)(2) provides for bargaining over the "procedures which
management officials of the agency will observe in exercising any author-
ity under this section." 5 U.S.C. S 7106(b)(2). Section 7106(b)(3) provides
for bargaining over "appropriate arrangements for employees adversely
affected by the exercise of any authority under this section by such man-
agement officials." 5 U.S.C. S 7106(b)(3). Unlike section 7106(b)(1),
these two sections do not give agencies discretion to bargain, but instead
mandate bargaining.
2 Section 7116(a)(1) makes it an unfair labor practice "to interfere with,
restrain, or coerce any employee in the exercise by the employee of any
right under this chapter." 5 U.S.C. S 7116(a)(1). Section 7116(a)(5) makes
it an unfair labor practice "to refuse to consult or negotiate in good faith
with a labor organization as required by this chapter." 5 U.S.C.
S 7116(a)5).
3 The FLRA decided this interpretative issue in a related case. See
United States Dep't of Commerce, Patent and Trademark Office
("Commerce II"), 54 FLRA No. 43 (1998). It then applied the reasoning
of that case to the facts of the present case. See Social Security Admin.,
Santa Rosa Dist. Office, Santa Rosa, California, 54 FLRA No. 45 (1998).
                               2413

Standard of Review
We give deference to an agency's interpretation of statutes
and executive orders it is charged with administering. See
NLRB v. Kolkka, 170 F.3d 937, 939 (9th Cir. 1999) (statute);
Kester v. Campbell, 652 F.2d 13, 15 (9th Cir. 1981) (execu-
tive order); University of S. Cal. v. Cost of Living Council,
472 F.2d 1065, 1068 (9th Cir. 1972) (executive order). When
an agency interprets a statute outside its administration, how-
ever, we review that interpretation de novo.4 See J.L. v. Social
Sec. Admin., 971 F.2d 260, 268 (9th Cir. 1992) (no deference
to SSA construction of Rehabilitation Act); see also FLRA v.
U.S. Dep't of Treasury, Fin. Mgmt. Serv., 884 F.2d 1446,
1451 (D.C. Cir. 1989) (no deference to FLRA's interpretation
of Privacy Act).
In this case, the FLRA interpreted an executive order deal-
ing with labor-management partnerships in the federal gov-
ernment. Although the Order relates to matters under the
FLRA's responsibility, the FLRA was not charged with
administering the Order such that its interpretation is entitled
to deference. Therefore, we review the FLRA's interpretation
of the Order de novo.
Analysis
We start with the language of the Order. Section 2(d) of
Executive Order 12871 states that "[t]he head of each agency
subject to the provisions of Chapter 71 of title 5, United States
Code shall . . . . negotiate over the subjects set forth in 5
_________________________________________________________________
4 We are unaware of any 9th Circuit cases involving an agency's inter-
pretation of an executive order it was not charged with administering. But
when this court has shown deference to agency interpretations of execu-
tive orders, it has expressly noted that the agency was charged with
administering the order. See Kester, 652 F.2d at 15; Cost of Living
Council, 472 F.2d at 1068-69. We think it reasonable to conclude, there-
fore, that when an agency is not charged with administering an executive
order, this court reviews the agency's interpretation of that order de novo.
                               2414

U.S.C. S 7106(b)(1), and instruct subordinate officials to do
the same." 58 Fed. Reg. at 52202-03. There is no question
that the Agency is subject to the provisions of Chapter 71 of
title 5, which prescribes the rights and obligations of federal
employees. There is also no question that the Order is manda-
tory and that agencies failing to obey the Order are answer-
able to the President.
[1] We cannot conclude, however, that the language of the
Order constitutes an election to bargain. As the D.C. Circuit
recently pointed out in a related case, the Order does not state
that the President has elected to negotiate with labor unions.
See National Ass'n of Gov't Employees, Inc., v. FLRA , 179
F.3d 946, 950 (D.C. Cir. 1999). Instead, it directs the head of
each agency to negotiate and to instruct subordinates to do the
same. See id. The distinction between the two statements may
be subtle, but as the FLRA noted, "directing another to take
an act is not necessarily the same as undertaking the act
oneself." United States Dep't of Commerce, Patent and
Trademark Office ("Commerce II"), 54 FLRA No. 43, at 19
(1998). This distinction is especially important given that the
President easily could have used the term "election" if that is
what was intended.5
_________________________________________________________________
5 The Union argues that the FLRA has frequently looked at negotiated
language to determine that an agency has made an election to bargain and
has not required use of the word "elect." To support this argument, it
points to three cases: National Treasury Employees Union, Chapter 97, 45
FLRA 1242, 1250 (1992); National Ass'n of Gov't Employees, Local R4-
75 Union, 24 FLRA 56, 62 (1986); Local 1917, American Fed'n of Gov't
Employees, 13 FLRA 77, 78 (1983). These cases, however, do not stand
for the proposition that an executive order or agency statement can consti-
tute an election without using the word "elect. " Rather, in each case, the
FLRA simply held that when an agency has signed a collective bargaining
agreement containing topics covered by section 7106(b)(1) -- such as
staffing levels -- the agency has elected to bargain over those topics;
indeed, the agency has already bargained over those topics. In the present
case, the Agency refused to bargain over section 7106(b)(1) topics, so we
cannot point to its agreement on such topics as evidence that it actually
elected to bargain.
                               2415

[2] That the President did not intend to make an election is
made clear by section 3 of the Order. Section 3 states that the
Order is "intended only to improve the internal management
of the executive branch and is not intended to, and does not,
create any right to administrative or judicial review." It seems
highly unlikely that a President who intended to make a
legally enforceable election on behalf of all government agen-
cies would at the same time declare that the order does not
create any judicially or administratively enforceable rights.
The Union argues that section 3 does not preclude a finding
that the Order constitutes an election under section
7106(b)(1). Although it concedes that section 3's language
with respect to judicial review prevents a party from enforc-
ing the order standing alone, the Union maintains that it does
not seek to enforce the order itself. Instead, it seeks to enforce
section 7106(b)(1)'s provision for bargaining when an elec-
tion is made, and it relies on the Order only to demonstrate
that an election has in fact been made.
[3] The Union's argument is intriguing, as far as it goes.
But even if section 3 does not bar us from giving effect to the
Order through enforcement of section 7106(b)(1), section 3 at
least demonstrates that the Order was not intended to consti-
tute an election. Put another way, the Union's theory that it
seeks only to enforce section 7106(b)(1) may resolve any
jurisdictional problems created by section 3, but the theory
cannot overcome the clear implication of section 3, which is
that the Order was not intended to constitute a legally enforce-
able election.
[4] The Union also argues that its position is supported by
a guidance issued by the Office of Personnel Management
("OPM"), which states that "bargaining over the subjects set
forth in 5 U.S.C. S 7106(b)(1) is now mandatory, and a failure
by agency managers to engage in such bargaining would be
inconsistent with the President's directive." Commerce II, 54
FLRA No. 43, at 15 (quoting OPM "Guidance for Implement-
                               2416

ing Executive Order 12871"). However, the guidance does not
state that the Order constitutes an election, only that it is man-
datory, and there has never been any dispute on that point.
The Union argues that the Order could only be mandatory if
it constituted an election because otherwise it would have no
mandatory effect; it would only be a suggestion. But the Pres-
ident can discipline agency heads who fail to follow the
Order, and in this sense the O