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08/06/82 Department of Defense, v. Federal Labor

August 6, 1982

DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY, AND HEADQUARTERS, EIGHTH U.S. ARMY GARRISON, YONGSAN, KOREA, PETITIONERS

v.

FEDERAL LABOR RELATIONS AUTHORITY, RESPONDENT; NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INTERVENOR;

DEPARTMENT OF DEFENSE, ET AL., PETITIONERS

v.

FEDERAL LABOR RELATIONS AUTHORITY, RESPONDENT; NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INTERVENOR



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 80-2310, 80-2341

Petition for Review and Cross-Application for Enforcement of an Order of the Federal Labor Relations Authority. 1982.CDC.215

APPELLATE PANEL:

Wald, Mikva and Ginsburg, Circuit Judges. Opinion for the Court filed by Circuit Judge Mikva. Opinion filed by Circuit Judge Ginsburg, dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA

We deal here with the perhaps unavoidable tension between two important areas of national policy: federal employee labor relations and the United States military presence in allied countries. In general, we are called upon to examine the relationship between the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (Supp. IV 1980) (the statute), and Army regulations governing the conduct of United States personnel in South Korea, promulgated pursuant to the Mutual Defense Treaty, Oct. 1, 1953, 5 U.S.T. 2368, T.I.A.S. No. 3097, and an executive agreement, the Status of Forces Agreement, July 9, 1966, 17 U.S.T. 1677, T.I.A.S. No. 6127 . Specifically at issue is whether regulations dealing with the registration of privately owned motor vehicles and the rationing of consumer goods are mandatory subjects for collective bargaining.

The union representing a group of civilian employees attached to the U.S. forces in Korea proposed to bargain with the employer over the regulations. The Army declined to bargain, asserting that to do so would interfere with its management role and run counter to United States treaty obligations. The Federal Labor Relations Authority determined that bargaining about both sets of regulations was required. We review that determination on this appeal. We conclude that the FLRA's bargaining order must be enforced with respect to the rationing regulations. With regard to the motor vehicles regulations, we are unable to determine just what the union was proposing, and we therefore remand for clarification. I. BACKGROUND

In order to provide the background for an analysis of the issues presented by this case, we first discuss the relevant provisions of the statute. Next we describe the operation of the Mutual Defense Treaty and SOFA, as well as the regulations at issue. Finally, we summarize the union's bargaining proposals.

A. The Statute

The Federal Service Labor-Management Relations Statute was enacted on October 13, 1978, as Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1191. Based on the recognition by Congress that "labor organizations and collective bargaining in the civil service are in the public interest," 5 U.S.C. § 7101(a) (Supp. IV 1980), the statute establishes a comprehensive scheme to deal with labor relations in federal employment. *fn1 Many of the features of the scheme are familiar because they are closely analogous to the law that has developed with regard to the private sector.

One such feature is the duty of agencies and labor organizations to bargain in good faith; the scope of that duty is central to the resolution of the issues in this case. Once an agency has recognized a union as the exclusive representative of the employees in a bargaining unit, the two sides must "meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement," id. 7114(a) (4). The duty to bargain includes any "condition of employment," id. § 7114(b) (2), which in turn is defined to include "personnel policies, practices, and matters, whether established by rule, regulation or otherwise, affecting working conditions," id. § 7103(a) (14).

The scope of the duty to bargain in the context of federal labor relations is subject to a number of important limitations, several of which are relevant to this case. First, the definition of a "condition of employment" excludes matters to the extent that they are "specifically provided for by Federal statute," id. § 7103(a) (14) ; and the duty to bargain includes matters covered by federal rules or regulations, but only "to the extent not inconsistent with any Federal law or any Government-wide rule or regulation," id. § 7117(a) (1). Second, the "management rights" section of the statute reserves to agencies the exclusive authority to determine their "internal security practices," id. § 7106(a) (1), although this reservation is hedged somewhat in that "nothing in this section shall preclude any agency and any labor organization from negotiating . . . procedures which management officials of the agency will observe in exercising any authority under this section," id. § 7106(b) (2). Finally, the President has the express authority to exclude certain agencies from the operation of all or part of the statute, such as the duty to bargain:

(1) The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that --

the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and

the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.

(2) The President may issue an order suspending any provision of this chapter with respect to any agency, installation, or activity located outside the 50 States and the District of Columbia, if the President determines that the suspension is necessary in the interest of national security.

Id. § 7103(b).

The federal employment relations analogue to the National Labor Relations Board is the Federal Labor Relations Authority. The FLRA's general purpose is to "provide leadership in establishing policies and guidance" with regard to matters covered by the statute. Id. § 7105(a) (1). In addition, the FLRA has the authority to administer specific provisions of the statute. In this context it is empowered to resolve "issues relating to the duty to bargain in good faith." Id. § 7105(a) (2) . When an agency maintains that its duty to bargain does not extend to a particular proposal by a union, the union may turn to the FLRA and seek a determination that bargaining is mandatory. The FLRA then requests submissions from the parties, and it may hold a hearing at its discretion before it issues a decision. Id. § 7117(c). See 5 C.F.R. Part 2424 (1982).

B. The Treaty, SOFA, and the Regulations

The United States military presence in South Korea is the subject of the Mutual Defense Treaty of 1953, 5 U.S.T. 2368, T.I.A.S. No. 3097, which states that U.S. forces are to be deployed "as determined by mutual agreement," id. art. IV. The mutual agreement implementing the treaty is the Status of Forces Agreement of 1966, 17 U.S.T. 1677, T.I.A.S. No. 6127. SOFA contains provisions governing various aspects of the stationing in Korea of U.S. personnel, including civilian employees attached to the armed forces. The agreement also establishes a Joint Committee, composed of representatives of the Korean and United States Governments, which is to function as "the means for consultation . . . on all matters requiring mutual consultation." SOFA art. XXVIII.

At issue in this case are the provisions of SOFA that deal with the registration of privately owned motor vehicles by U.S. personnel, and with the control of the traffic in consumer goods at facilities such as post exchanges and commissaries. These provisions, together with the U.S. ...


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