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WASHINGTON, D.C. 20415-2000


DATE::  March 18, 1999

SUBJECT:  Supreme Court Says That It Is for FLRA, Not the Courts,
                    To Determine Whether, and Under What Circumstances,
                    There is a Midterm Bargaining Duty.

National Federation of Federal Employees, Local 1309 v. Department of the Interior et al., and Federal Labor Relations Authority v. Department of the Interiotr et al., Supreme Court, Nos. 97-1184 and 97-1243, March 3, 1999.

In a 5-4 decision, the Supreme Court (Justice Breyer, joined by Justices Stevens, Kennedy, Souter, and Ginsberg) held that because the Federal Service Labor-Management Relations Statute (FSLMRS) is ambiguous with respect to midterm bargaining, it is for the Federal Labor Relations Authority (FLRA), not the courts, to determine, in light of FLRA's delegated authority and specialized expertise in the field of labor relations, "whether, when, and where midterm bargaining is required[.]" FLRA, says the Court, "is entitled to considerable deference when it exercises its special function of applying the general provisions of the Act to the complexities' of federal labor relations. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983) . . . ."

In rejecting the "absolutist" views of the 4th and D.C. Circuits, the Court said the following:

[W]here the Agency and the Fourth Circuit find a clear statutory denial of any midterm bargaining obligation, we find ambiguity created by the Statute's use of general language that might, or might not, encompass various forms of midterm bargaining. That kind of statutory ambiguity is inconsistent both with the Fourth Circuit's absolute reading of the Statute and also with the D.C. Circuit's similarly absolute, but opposite, reading. . . . The statutory ambiguity is perfectly consistent, however, with the conclusion that Congress delegated to the Authority the power to determine--within appropriate legal bounds, see, e.g., 5 U.S.C. § 706 (Administrative Procedure Act); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)--whether, when, where, and what sort of midterm bargaining is required. The Statute's delegation of rulemaking, adjudicatory, and policymaking powers to the Authority supports this conclusion.

The Court rejected, among other things, the agency's contention that § 7114(a)(4)'s reference to "arriving at" an agreement precludes bargaining intended to "supplement" the parties' basic agreement. In the Court's view, "these linguistic arguments, while logical, make too much of too little. One can easily read 'arriving at a collective bargaining agreement' as including an agreement reached at the conclusion of midterm bargaining . . . ." The Court also rejected the agency's claim that "collective bargaining agreement" is a "term of art" that excludes midterm agreements.

Nor was the Court persuaded by the agency's policy arguments. According to the agency, interpreting the statute to provide for midterm bargaining would give unions an incentive to engage in piece-meal bargaining and would effectively eliminate compromise from the bargaining process. Although private sector unions have the right to bargain midterm, that right is rarely exercised because they are reluctant to strike midterm. No comparable disincentive exists in the Federal program where any and all impasses can be referred to the Impasses Panel for final resolution and the only economic costs of disagreement are the fees that might have to be paid to an interest arbitrator, should FSIP order use of outside interest arbitration.

But the Court looked at the other side of the policy coin:

Other policy concerns, however, argue for a different reading of the Statute. Without midterm bargaining, for example, will it prove possible to find a collective solution to a workplace problem, say a health or safety hazard, that first appeared midterm? The Statute's emphasis upon collective bargaining as "contribut[ing] to the effective conduct of public business," 5 U.S.C. § 7101(a)(1)(B), suggests that it would favor joint, not unilateral, solutions to such midterm problems. . . . [T]he Agency's policy arguments illustrate the need for the Authority's elaboration or refinement of the basic statutory collective-bargaining obligation; they illustrate the appropriateness of judicial deference to considered Authority views on the matter . . . .

The Agency's legislative history argument fared no better. Under the program established by Executive Order 11491, the Assistant Secretary of Labor for Labor-Management Relations held that an agency needn't bargain on union midterm proposals. The Court, noting that this single decision had not been reviewed by FLRA's predecessor agency (the Federal Labor Relations Council), said that "a single, unreviewed decision . . . does not demonstrate the kind of historical practice that one might assume would be reflected in the Statute[.]" Nor was the Court persuaded by references to a Senate Report's reference to negotiations leading to a basic collective bargaining agreement. The Senate Report, the Court noted, pertained to a bill that wasn't adopted.

The Court also rejected the claim that § 7106(b) authorizes limited midterm bargaining (a theme taken up at length in the dissenting opinion written by Justice O'Connor). Section 7106(b), said the Court, deals with the scope of bargaining, not with the timing of bargaining:

By its terms . . . subsection (b) does nothing more than create an exception to subsection (a) . . . . Because § 7106(b) chiefly addresses the subject matter of bargaining and not the timing, one could reasonably conclude that while that subsection contemplates midterm bargaining in the circumstances there specified, the duty to bargain midterm finds its source elsewhere in the Statute. Hence, the management rights provision seems to hurt, as much as to help, the Agency's basic argument.

Noting that FLRA initially held that there was no duty to bargain on union-initiated midterm bargaining requests, but that it had changed its view after the D.C. Circuit issued its "absolutist" view to the contrary, the Court remanded the cases to the Authority to give it an "opportunity to consider these questions aware that the Statute permits but does not compel, the conclusion it reached."

In a 2-part dissenting opinion written by Justice O'Connor (joined by Chief Justice Rhenquist and, only with respect to the first part of her opinion, by Justices Scalia and Thomas), Justice O'Connor argued that the statute wasn't ambiguous and, in providing for impact and implementation bargaining implicitly precluded a general midterm bargaining duty. In the second part (not joined by Justices Scalia and Thomas), she argued that "even if there were some ambiguity in the Federal Labor Statute, I would hold that the agency's interpretation of the Federal Labor Statute is inferior to the natural, and most plausible, reading of that Statute--that there is no general duty to bargain midterm."


To sum up, the Supreme Court DID NOT DECIDE whether the FSLMRS provides for a general duty to bargain midterm. It instead remanded the matter for FLRA to decide. In the process it sent a message to the circuit courts of appeal to accord deference to whatever conclusion FLRA reaches. FLRA, in turn, is expected to consider some of the questions raised by the agency in reaching its decision. The fact that the vote was as close as it can possibly get may or may not have a bearing on how FLRA comes down on the issue. We'll just have to wait for FLRA to tell us whether, and to what extent, and under what circumstances, there is a duty to engage in midterm bargaining.

If agencies have any questions on the material contained in this advisory, please call 202-606-2930. Our email address is lmr@opm.gov.

Page Updated 24 February 2000