DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, PETITIONER V. DAVID A. FITZGERALD, ET. AL. No. 86-1262 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit The Solicitor General, on behalf of the Department of Transportation, Federal Aviation Administration, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit. PARTIES TO THE PROCEEDING Petitioner is the Department of Transportation, Federal Aviation Administration. Respondents are David Fitzgerald, William Sedgwick, Max Winter, and Carl Vaughn. TABLE OF CONTENTS Parties to the proceeding Opinions below Jurisdiction Statutory provisions involved Question presented Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I Appendix J OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-10a) is reported at 798 F.2d 461. The August 1, 1984, opinion of the Merit Systems Protection Board (the MSPB) (App., infra, 14a-21a) is reported at 22 M.S.P.R. 343 (1984). The MSPB's November 10, 1983, opinion (App., infra, 24a-31a) is reported at 18 M.S.P.R. 254 (1983). The four decisions of the presiding MSPB officials (App., infra, 32a-64a) are unreported. JURISDICTION The judgment of the court of appeals (App., infra, 11a) was entered on August 8, 1986. A petition for rehearing was denied on October 3, 1986 (App., infra, 12a). On December 24, 1986, Chief Justice Rehnquiest entended the time within which to file a petition for a writ of certiorai to and including February 2, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED 1. 5 U.S.C. 7103(a) provides in pertinent part: * * * * * (12) "collective bargaining" means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession; * * * * * 2. 5 U.S.C. 7131 provides in pertinent part: (a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes. 3. 5 U.S.C. 7311 provides in pertinent part: An individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he -- * * * * * (3) participates in a strike, or asserts the right to strike, against the Government of the United States or the government of the District of Columbia; or (4) is a member of an organization of employees of the Government of the United States or of individuals employed by the government of the District of Columbia that he knows asserts the right to strike against the Government of the United States or the government of the District of Columbia. 4. 18 U.S.C. 1918 provides in pertinent part: Whoever violates the provision of section 7311 of title 5 that an individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he -- * * * * * (3) participates in a strike, or asserts the right to strike, against the Government of the United States or the government of the District of Columbia; or (4) is a member of an organization of employees of the Government of the United States or of individuals employed by the government of the District of Columbia that he knows asserts the right to strike against the Government of the United States or the government of the District of Columbia; shall be fined not more than $1,000 or imprisoned not more than one year and a day, or both. QUESTIONS PRESENTED Whether four air traffic controllers, who were dismissed for being absent from work without authorization during an illegal strike, were entitled to "official time" under 5 U.S.C. 7131(a), and were therefore not subject to dismissal, on the ground that notwithstanding the ongoing strike and the absence of negotiations they were "representing an exclusive representative in the negotiation of a collective bargaining agreement." STATEMENT 1. Title VII of the Civil Service Reform Act of 1978 (the Act), Pub. L. No. 95-454, 92 Stat. 1119, U.S.C. (& Supp. III) 7101 et seq., established a comprehensive statutory scheme governing federal labor-management relations. /1/ In enacting the legislation, Congress concluded that it was in the public interest to allow federal employees to organize, bargain collectively, and participate in labor organization (5 U.S.C. 7101(a)). Title VII explicitly protects the rights of such employees "to form, join, or assist any labor organization, or to refrain from any such activity" (5 U.S.C. 7102). To facilitate collective bargaining, the Act provides that union representatives engaged in "the negotiation of a collective bargaining agreement" are entitled to "official time" for that purpose "during the time (they) otherwise would be in a duty status" (5 U.S.C. 7131(a)). Certain management decisions are are excluded from the scope of negotiations, but an agency must bargain over the procedures by which these reserved management rights are exercised (5 U.S.C. 7106). The Act also provides that the failure to bargain in good faith is an unfair labor practice (5 U.S.C. 7116(a)(5) and (b)(5)), and the Federal Labor Relations Authority (FLRA) was established to supervise the collective bargaining process (5 U.S.C. (& Supp. III) 7104, 7105). In addition, the Act provides for arbitration, if necessary (5 U.S.C. (& Supp. III) 7121, 7122), and it creates a Federal Service Impasses Panel to assist in resolving differences (5 U.S.C. 7119). See generally Bureau of Alcohol, Tobacco and Firearms (BATF) v. Federal Labor Relations Authority, 464 U.S. 89, 91-92 (1983). At the same time, however, Congress took not of the "special requirements and needs of the Government," and it directed that the Act "be interpreted in a manner consistent with the requirements of an effective and efficient Government" (5 U.S.C. 7101(b)). Most significantly for present purposes, Congress reinforced provisions of existing law. /2/ that made it clear that strikes by federal employees are prohibited. For example, the Act defines "employee" to exclude any person who participates in a strike against the federal government (5 U.S.C. 7103(a)(2)(v)), and it defines "labor organization" to exclude any organization that participates in or calls such a strike (5 U.S.C. 7103(a)(4)(D)). In addition, calling, participating in, or condoning a strike is an unfair labor practice (5 U.S.C. 7116(b)(7)), and a union that willfully violates Section 7116(b)(7) may no longer serve as an exclusive bargaining agent (5 U.S.C. 7120(f)); see generally BATF, 464 U.S. at 92; FAA v. PATCO, 7 F.L.R.A. 34, 36-39 (1981). 2. Respondents were air traffic controllers who were among the over 11,000 controllers removed in 1981 by the Federal Aviation Administration (FAA) for participating in an illegal strike called by their union, the Professional Air Traffic Controllers Organization (PATCO). In addition, they were four of the eleven PATCO regional representatives /3/ whose function was to review and approve a collective bargaining agreement prior to its submission to the rank and file for a vote. App., infra, 1a-2a; see Schapansky v. Department of Transportation, 735 F.2d 477, 481 & n.4 (Fed. Cir.), cert. denied, 469 U.S. 1018 (1984). Prior to August 1, 1981, PATCO and the FAA had been engaged in negotiations looking toward a collective bargaining agreement, but the negotiations had become deadlocked. On that day, the Secretary of Transportation requested that PATCO's negotiating team report to Washington, D.C., to resume negotiations. Each respondent thereafter left for Washington after being told to do so by union officials. None of the four respondents obtained agency authorization for his absence. App., infra, 2a, 17a. /4/ On August 3, 1981, PATCO called upon its members to engage in a nationwide strike beginning at 7:00 a.m. eastern daylight time (App., infra, 14a, 41a). PATCO's purpose in calling the strike was, in the absence of "prompt governmental capitulation," to "inflict harm of the highest magnitude" upon the airline transportation system, to inconvenience the public, to harm the national economy, and "to place at risk the public safety" (Schapansky, 735 F.2d at 484; see App., infra, 2a(citing Schapansky as the case setting out the "basic facts" of the strike)). /5/ At 11:00 a.m. eastern daylight time on August 3, 1981, the President of the United States stated that air traffic controllers who had not reported to work were "in violation of the law" and announced that if they failed to return to work within 48 hours "they (would) forfeit() their jobs and (would) be terminated" (App., infra, 41a). The Secretary of Transportation, who was with the President at the time of the announcement, added that there would be no negotiations with the union while the strike continued. Also on August 3 the FAA announced that it would only negotiate with people who were on the job working as controllers. The FAA subsequently implemented the President's 48-hour announcement by sending a notice of proposed removal to each controller who failed to report for duty on his first scheduled shift after 11:00 a.m. eastern daylight time on August 5, 1981. As a result, over 11,000 controllers, including respondents, were removed from their positions by the FAA. Id. at 2a, 3a, 9a n.11, 19a, 33a; Anderson v. Department of Transportation, 735 F.2d 537, 539 (Fed. Cir.), cert. denied, 469 U.S. 1018 (1984); 17 Weekly Comp. Pres. Doc. 845, 846, 848 (Aug. 3, 1981). 3. Each respondent appealed his removal to the MSPB, arguing, inter alia, that his absence from work stemmed from his participation in collective bargaining negotiations and that he was therefore entitled to "official time" under 5 U.S.C. 7131 (a). After evidentiary hearings, four different MSPB presiding officials, in separate decisions, rejected respondents' defenses on the ground that respondents did not follow the proper procedures for requesting leave. /6/ Respondents sought review by the full MSPB. In a consolidated decision issued on November 10, 1983, the MSPB reversed the decisions of the four presiding officials (App., infra, 24a-31a). It first ruled that there were no specified procedures for requesting official time to represent one's union in collective bargaining (id. at 27a). Relying on the fact that the Secretary of Transportation had requested on August 1 that PATCO representatives be in Washington for collective bargaining, the MSPB then held that respondents were, at the various times at which they failed to report for work after 11:00 a.m. on August 5, 1981, engaged in representing PATCO in collective bargaining and were therefore not subject to dismissal for failing to report to work (id. at 27a-29a). On May 11, 1984, the MSPB reopened the case and requested additional briefing (App., infra, 22a-23a). /7/ On August 1, 1984, the MSPB issued a new decision vacating its earlier ruling and sustaining respondents' removal (id. at 14a-21a). The MSPB held that respondents were not entitled to official time under 5 U.S.C. 7131(a) for two reasons. First, it found that respondents were participants in the strike and that they would have stayed away from work even had they not been in Washington (App., infra, 18a-19a). Reasoning that Section 7131(a) only authorizes leave for persons who "otherwise would be in a duty status," it ruled that respondents did not qualify (App., infra, 18a-19a). Second, the MSPB held that respondents were not, at the times at which they failed to report, engaged in collective bargaining, and hence were not entitled to official leave under Section 7131(a) (App., infra, 19a). The MSPB took official notice of the fact that PATCO itself had acknowledged that the FAA had stated its unwillingness to bargain during a strike and had charged the FAA with an unfair labor practice for refusing to bargain after the strike had begun (ibid.). Noting that respondents were "claim(ing) an entitlement to official leave for their role in negotiations which the union alleged were not being conducted" (ibid.), the MSPB ruled that the concept of collective bargaining did not include time spent "waiting to see if the agency could be compelled or coerced into once again dealing with the union" (id. at 19a-20a). /8/ 4. Respondents sought review by the United States Court of Appeals for the Federal Circuit. On August 8, 1986, a panel of that court reversed the MSPB (App., infra, 1a-10a), holding that respondents were engaged in collective bargaining and that this conduct entitled them to official time under 5 U.S.C. 7131 and Article 8(1) of the FAA/PATCO collective bargaining agreement. /9/ The court reasoned that although respondents "were not involved in formal (across the table) negotiations with the FAA" during the strike, "PATCO remained the collective bargaining representative until October 1981" (App., infra, 9a (footnote omitted)). The court noted (id. at 10a) that respondents had to ratify any proposed collective bargaining agreement before it could be submitted to the rank and file union members and that "(i)f (respondents) had gone back to their home bases, the Union would have been unable to settle the strike because the strike ratification mechanism would not have been available." Furthermore, the court reasoned, even though the FAA had indicated that it would not negotiate during a strike, "(respondents) met with interested representatives of both the executive branch and Congress in a futile attempt to end the strike" (ibid.). The court concluded that "(i)n these circumstances, it was clearly not the intent of Congress that the negotiators for the Representative Union must go home the discontinue talks with FAA after the strike was called" (ibid.). /10/ REASONS FOR GRANTING THE PETITION Congress has unequivocally banned strikes by federal employees, making participation in such a strike a criminal act and excluding unions and individuals who participage in such strikes from the very definitions of "labor organization" and "employee" and hence from the protection of federal labor relations law. The Federal Circuit nevertheless ruled that respondents, who chose not to report to work but to remain in Washington after the deadline announced by the President had passed, were entitled to official leave, because they were engaged in representing a labor organization in the negotiation of a collective bargaining agreement, even though (i) that union had called the illegal strike, (ii) both the employing agency and the Secretary of Transportation had clearly indicated that no negotiations would occur until the strike ended, and (iii) no negotiations in fact took place. That ruling was plain error. The error is important. Although federal employee strikes are infrequent, they can have devastating effects, including the disruption of essential services. Striking is inherently a collective activity: each federal employee who, without proper excuse, fails to report to work during a strike contributes materially to the strike's effectiveness. By erroneously excusing four representatives of the union that called a highly visible illegal strike, the decision below obscures what should be a clear message to federal employees: when an illegal strike has been called, their sole duty under federal labor relations law is to report to work. /11/ 1. Federal employees have long been prohibited from striking. /12/ Under 5 U.S.C. 7311(3), a person who "participates in a strike, or asserts the right to strike, against the Government of the United States" may not "accept or hold a position in the Government of the United States." /13/ Accepting or holding such a position in violation of Section 7311(3) is a criminal offense (18 U.S.C. 1918(3)). Federal law also requires all government employees to take an oath that they will not strike against the government (5 U.S.C. 3333(a)). In the Civil Service Reform Act, Congress made it clear that the strike has no legitimate place whatever in federal labor relations. First, it is an unfair labor practice for a federal employee union to call, participate in, or condone a strike (5 U.S.C. 7116(b)(7)), and the FLRA is required to decertify a union that willfully engages in such activity (5 U.S.C. 7120(f)). Even more fundamentally, the Act defines "labor organization" to exclude "an organization which participates in the conduct of a strike against the Government or any agency thereof or imposes a duty or obligation to conduct, assist, or participate in such a strike" (Section 7103(a)(4)(D)), and the Act defines "employee" to exclude "any person who participates in a strike in violatio of section 7311 of this title" (Section 7103(a)(2)(v)). These statutory provisions deprive striking unions and individuals of any protection under federal labor relations law. /14/ 2. The court of appeals should not have accepted respondent's argument that they were "representing an exclusive bargaining representative in the negotiation of a collective bargaining agreement" (5 U.S.C. 7131(a)), while (and because) they remained in Washington so that they could be readily available to negotiate if the illegal strike successfully coerced the government back to the bargaining table. First, there was no "negotiation"; respondents knew that the government had made it clear that it would not negotiate until the strike ended, and no negotiation occurred in fact. Second, if respondents had any hope of negotiations, it was a hope that the illegal strike, called by the union they were representing, would bring negotiations about: failure to report for duty during an illegal strike cannot be excused by a hope that the strike will achieve its objective. a. By definition, "collective bargaining" in the public sector requires "a good-faith effort to reach agreement" (5 U.S.C. 7103(a)(12) (emphasis added)). But public employee strikes are illegal efforts to put political pressure on the government by subjecting the public to hardship and inconvenience. See generally United Federation of Postal Clerks v. Bount, 325 F. Supp. 879, 884 (D.D.C.) (three judge court), aff'd mem., 404 U.S. 802 (1971). /15/ Once PATCO had called such a strike, its representatives could not claim to be engaged in "good faith efforts" to negotiate the issues that gave rise to the strike. Unless and until the strike ended, "collective bargaining," as defined in the statute, was simply not possible. In any event, respondents had no reason to believe that negotiations would take place, and no negotiations did occur once the PATCO strike began. The FAA made it clear from the outset that it would not negotiate as long as the illegal strike continued (App., infra, 2a-3a, 9a n.11). Indeed, PATCO itself explicitly recognized that there were no negotiations once the strike commenced and filed an unfair labor practice charge with the FLRA challenging the FAA's refusal to negotiate during the strike (id. at 19a). /16/ And respondents' own evidence forecloses any finding that they were engaged in collective bargaining after August 3, 1981. /17/ b. The Federal Circuit's ruling that respondents were entitled to decide to stand by in Washington /18/ against the possibility that negotiations would resume runs counter to the fundamental premise that for federal employees striking is a wholly illegal collective bargaining tactic. PATCO could have terminated the strike at any time. Instead, its representatives remained in Washington, and off the job, "waiting to see if the agency could be compelled or coerced into once again dealing with the union" (App., infra, 19a-20a), i.e., in the hope that the strike would succeed in bringing the FAA to be bargaining table. Failure to report for duty during an illegal strike cannot be excused by the possibility that, if the strike achieves its objective, the employee will then have duties that will entitle him to official leave. 3. Although strikes by federal employees do not occur often, their consequences may be extremely serious. Congress has therefore made it exceedingly clear that when a strike occurs, the duty of each federal employee is to not participate in it. Not participating in a strike means reporting for work on schedule in the basence of a valid excuse, and the Federal Circuit has sustained the dismissals of more that 11,000 rank and file air traffic controllers who failed, without valid excuses, to report for their next on-duty shifts after the President's deadline. See Anderson, 735 F.2d at 538-539 (citing several cases). The Federal Circuit's decision in this case that leaders of PATCO had a valid excuse, because they were waiting to see if the government would return to the bargaining table, is not only in ironic contrast with that court's proper rejection of excuses proffered by thousands of rank and file employees, it also seriously obscures the congressional message to federal employees. The logic of the decision is that federal employees may decline to report for work during an illegal strike if they have some hope that the success of the strike itself will vindicate them; that logic would seriously weaken the deterrent to participation in future federal employee strikes. /19/ CONCLUSION The petition for a writ of certiorari should be granted. /20/ Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LOUIS R. COHEN Deputy Solicitor General ROBERT H. KLONOFF Assistant to the Solicitor General DAVID M. COHEN SANDRA P. SPOONER STEPHEN J. McHALE Attorneys FEBRUARY 1987 /1/ Title VII replaced the federal labor relations program created in 1962 by Executive Order No. 10988, 3 C.F.R. 521 (1959-1963 Comp.). Certain federal employees, including members of the military and Foreign Service, and certain agencies, including the General Accounting Office, the Federal Bureau of Investigation, and the Central Intelligency Agency, are excluded from coverage under Title VII (see 5 U.S.C. 7103(a)(2) and (3)). /2/ E.g., 5 U.S.C. 7311(3) and (4) (prohibiting from government employment any person who strikes against the government or who belongs to an organization of government employees that he knows asserts the right to strike against the government); 18 U.S.C. 1918(3) and (4) (making violation of 5 U.S.C. 7311(3) and (4) a criminal offense). /3/ Vaughn represented the eastern region, Winter the central region, Sedwick the southern region and Fitzgerald the Pacific region (App., infra, 2a n.2). /4/ Respondents Fitzgerald, Winter, and Sedgwick did not contend to the MSPB that their absences during the strike were officially authorized by the agency (App., infra, 16a). In fact, Winter was contacted by his supervisor on August 2, 1981, and was directed to report for duty (ibid). He did not advise his supervisor that he intended instead to travel to Washington at his union's request (id. at 16a-17a). Only respondent Vaughn claimed to have received his agency's approval for his absence during the strike, but the MSPB found, as a factual matter, that the FAA did not authorize his absence (id. at 17a, 37a). /5/ Between August 3, 1981 and August 8, 1981, 26,000 flights were cancelled and 23 air traffic control facilities were closed (see PATCO v. Federal Labor Relations Authority, 685 F.2d 537, 551 n.4 (D.C. Cir. 1982); FAA v. PATCO, 7 F.L.R.A. 34, 41 (1981)). /6/ Each of the four decisions involved a large number of air traffic controllers and raised numerous issues that are not relevant here; we have reproduced only those portions of the opinions that pertain to this case (App., infra, 32a-64a). /7/ In ordering rehearing, the MSPB indicated (App., infra, 22a-23a) that it wanted to reconsider its decision in light of this Court's BATF decision and in light of the FLRA General Counsel's determination that the FAA's duty to participate in collective bargaining had been suspended because of the PATCO strike. The MSPB stated (id. at 22a) that it was rehearing the case on its own motion and that it was denying the government's request to file a petition for reconsideration out-of-time. /8/ In addition, the MSPB noted (App., infra, 17a) that the failure of respondents and the union to follow normal procedures for requesting leave was inconsistent with respondents' claim that they were on approved leave and was "more consistent with a finding that (respondents) left their duty stations when the strike was imminent, intending to withhold their services during the strike, should it occur, in concert with others." /9/ Article 8(1) provided that "Union officials who are elected or selected to serve in an offical capacity as a representative of the Union shall be entitled to a leave of absence for their terms of office or appointment" (App., infra, 5a n.7). Notwithstanding its ruling that Section 7131 and Article 8(1) authorized respondents' actions, the court treated the statutory issue as the "core issue" (App., infra, 4a (footnote omitted)). The court apparently concluded that unless respondents met the requirements of Section 713(a), then they were not serving "in an official capacity" as union representatives. /10/ The court also said that since respondents were engaged in collective bargaining, it was "irrelevant" whether they would have reported to work had they not been involved in such activity (App., infra, 7a n.9). /11/ If the court of appeals' decision is permitted to stand, respondents -- leaders of the union that called the strike -- will be entitled to be reinstated and will receive substantial awards of back-pay, estimated by the FAA to be approximately $250,000 per respondent before taxes and other set-offs. /12/ The first statutory ban on striking by federal employees was enacted in 1946 as a rider to an appropriations bill. Third Urgent Deficiency Appropriation Act, Pub. L. No. 79-419, Section 201, 60 Stat. 268-269. That provision prohibited the payment of salaries or wages to anyone who engaged in a strike against the government. /13/ Section 7311(3) was originally enacted in a similar form in 1955. Pub. L. No. 84-330, Section 1, 69 Stat. 624, formerly codified at 5 U.S.C. (Supp. III 1956) 118p. /14/ The legislative history of Section 7103(a)(2)(v) underscores, Congress's strong opposition to striking by public employees. That limitation on the term "employee" was originally introduced as an amendment by Congressman Rudd (124 Cong. Rec. 29189-29190 (1978)). In explaining the purpose of his amendment, Congressman Rudd indicated (id. at 29190) that it was designed to "remove any doubt" about Congress's intent with respect to strikes by federal employees by providing "in clear and unequivocal language that strikes against the Federal Government are illegal and punishable." He further stated that under his amendment, a striking employee "would no longer enjoy the protections and benefits of (the Act)" (ibid.). In discussing the evils of public sector strikes, he pointed out that such strikes "deprive the public of services for which there is no alternative source of supply" and that some of those services "are so critical that their disruption threatens the public well-being" (ibid). He characterized such strikes as "nothing short of blackmail -- the actions of a narrow-interest group holding public welfare hostage in order to achieve their own selfish ends" (ibid). /15/ As the FLRA explained in its decision decertifying PATCO (FAA v. PATCO, 7 F.L.R.A. at 60), "(b)y engaging in the strike, PATCO not only rejected the congressionally prescribed framework for collective bargaining in the Federal sector but also PATCO attempted to tear that framework apart and replace it with collective bargaining on PATCO'S own terms in defiance of the public interest." /16/ The FLRA refused to issue a complaint on that charge because the FAA had no duty to bargain during the strike (App., infra, 19a). See also FAA v. PATCO, 7 F.L.R.A. at 60 (recognizing that collective bargaining ended with the call to strike on August 3, 1981). /17/ At his evidentiary hearing, respondent Sedgwick testified that he attended no negotiations with the FAA during all of August, and he gave no explanation as to what he was doing after the strike began (J.S.A. 239-240) ("J.S.A." refers to the Joint Supplemental Appendix filed in the court of appeals). Respondent Winter similarly admitted at his hearing that he was not personally involved in face-to-face negotiations with FAA officials, although he indicated that PATCO president Poli told him that negotiations were continuing (id, at 151). Respondent Fitzgerald did not testify at all. Only respondent Vaughn spelled out his own activities in any detail. Vaughn indicated that he met with members of Congress, members of the news media, a member of President Reagan's staff, and certain FAA officials (id. at 91-95, 100-103, 124-125). But Vaughn admitted that he participated in no negotiations with the FAA on or after August 3 (id. at 119). Vaughn's informal discussions with congressional staff, executive officials, and the media do not constitute "the negotiation of a collective bargaining agreement" for purposes of Section 7131(a), since the latter activity is limited to "bargain(ing)" with designated "representative(s) of (t)he agency" (5 U.S.C. 7103(a)(12); see 5 U.S.C. 7131(a)("The number of employees for whom official time is authorized shall not exceed the number of individuals designated as representing the agency for such purpose.")). Similarly, respondents cannot be deemed to have engaged in collective bargaining on the theory that they were "standing by" and waiting for the strike to end. As the MSPB stated (App., infra, 19a-20a), "(n)o matter how expansively the concept of negotiating may be interpreted, we do not believe that it should be extended to cover the stand-by time at issue here during which, after the illegal strike began, the (respondents) were waiting to see if the agency could be compelled or coerced into once again dealing with the union." /18/ There is, of course, no small irony in the implication that, had respondents left Washington, they would not have been able to return with sufficient speed should negotiations commence. /19/ The present case does not create an inter-circuit conflict. Indeed, such a conflict could not arise in light of the exclusive jurisdiction over appeals from the MSPB vested in the Federal Circuit. 28 U.S.C. 1295(a)(9). Accordingly, an erroneous decision by the Federal Circuit on the issue in this case will govern all future cases raising similar issues unless and until it is corrected by that court or by this Court. /20/ Since Congress's explicit ban on striking by federal employees is dispositive in this case, the Court may wish to consider summary reversal. APPENDIX