BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, PETITIONER V. FEDERAL
LABOR RELATIONS AUTHORITY, ET AL.

   No. 82-799

   In the Supreme Court of the United States

   October Term, 1982

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the Petitioner

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes involved
   Statement
   Summary of argument
   Argument:
      Title VII of the Civil Service Reform Act of
      1978, 5 U.S.C. (Supp. V) 7131(a), does not
      require that a federal agency pay a per diem
      allowance and travel expenses to employee
      union representatives engaged in collective
      bargaining with the agency
      A. Neither the language of Title VII nor its
          history indicates that a federal agency must pay
          a per diem allowance and travel expenses to
          employee union representatives engaged in
          collective bargaining with the agency
      B. The court of appeals failed to apply, or
          misapplied, well-established principles of
          statutory construction in affirming the
          Authority's interpretation of 5 U.S.C.
          (Supp. V) 7131(a)
      C. The reasoning offered by the Authority
          in support of its interpretation of 5
          U.S.C. (Supp. V) 7131(a) cannot withstand
          scrutiny
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-11a) is reported
at 672 F.2d 732.  The ruling of the Federal Labor Relations Authority
(Pet. App. 15a-34a) is reported at 4 F.L.R.A. No. 40.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 22, 1982
(Pet. App. 12a-13a), and a timely petition for rehearing was denied on
July 13, 1982 (Pet. App. 14a).  On October 1, 1982, Justice Rehnquist
extended the time in which to file a petition for a writ of certiorari
to and including November 10, 1982.  The petition was filed on that
date and was granted on January 17, 1983.  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   5 U.S.C. (Supp. V) 7131 provides:

         (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.

         (b) Any activities performed by any employee relating to the
      internal business of a labor organization (including the
      solicitation of membership, elections of labor organization
      officials, and collection of dues) shall be performed during the
      time the employee is in a non-duty status.

         (c) Except as provided in subsection (a) of this section, the
      Authority shall determine whether any employee participating
      for, or on behalf of, a labor organization in any phase of
      proceedings before the Authority shall be authorized official
      for such purpose during the time the employee otherwise would be
      in a duty status.

         (d) Except as provided in the preceding subsections of this
      section --

         (1) any employee representing an exclusive representative, or

         (2) in connection with any other matter covered by this
      chapter, any employee in an appropriate unit represented by an
      exclusive representative

         shall be granted official time in any amount the agency and
      the exclusive representative involved agree to be reasonable,
      necessary, and in the public interest.

   5 U.S.C. (Supp. V) 5702(a) provides:

         Under regulations prescribed under section 5707 of this
      title, an employee while traveling on official business away
      from his designated post of duty, or in the case of an
      individual described under section 5703 of this title, his home
      or regular place of business, is entitled to (1) a per diem
      allowance for travel inside the continental United States at a
      rate not to exceed $50, and (2) a per diem allowance for travel
      outside the continental United States, that may not exceed the
      rate established by the President, or his designee, for each
      locality where travel is to be performed.  For travel consuming
      less than a full day, such rate may be allocated
      proportionately.

   5 U.S.C. 5707(a) provides:

         The Administrator of General Services shall prescribe
      regulations necessary for the administration of this subchapter,
      except that the Director of the Administrative Office of the
      United States Courts shall prescribe such regulations with
      respect to official travel by employees of the judicial branch
      of the Government.

                          QUESTIONS PRESENTED

   Whether Title VII of the Civil Service Reform Act of 1978, 5 U.S.C.
(Supp. V) 7131(a), requires that a federal agency pay a per diem
allowance and travel expenses to employee union representatives
engaged in collective bargaining with the agency.

                               STATEMENT

   1. In October 1978, Congress enacted the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1111 ("the Act").  Title VII of
the Act (5 U.S.C. (Supp. V) 7101 et seq.) governs labor-management
relations, including collective bargaining, for nearly all federal
agencies.  /1/ Title VII replaced the federal labor relations program
created in 1962 by Exec. Order No. 10988, 3 C.F.R. 521 (1959-1963
Compilation).  /2/

   Title VII protects the right of federal employees "to form, join,
or assist any labor organization, or to refrain from any such
activity" (5 U.S.C. (Supp. V) 7102), and it establishes a duty to
bargain collectively in good faith.  See 5 U.S.C. (Supp. V) 7116(a)(5)
and (b)(5).  The statute also outlines the matters subject to the
bargaining obligation.  See 5 U.S.C. (Supp. V) 7103(a)(12) and (14),
7117.  Certain management rights are excluded from the scope of
bargaining.  5 U.S.C. (Supp. V) 7106.  However, an agency must
negotiate with a recognized union over procedures the agency will
follow in exercising its reserved management rights.  5 U.S.C. (Supp.
V) 7106(b)(2).  The provisions of Title VII are to be read "in a
manner consistent with the requirement of an effective and efficient
Government." 5 U.S.C. (Supp. V) 7101(b).

   The Act establishes the Federal Labor Relations Authority ("FLRA"
or "Authority") as a three-member independent body within the
Executive Branch with responsibility for supervising the federal
collective bargaining process under Title VII.  /3/ FLRA activities
include adjudication of negotiability disputes, unfair labor practice
complaints, bargaining unit issues, and arbitration exceptions,
conduct of elections, and rulemaking.  See 5 U.S.C. (Supp. V)
7105(a)(2)(A)-(I).  The FLRA has the authority to issue orders against
unfair labor practices (5 U.S.C. (Supp. V) 7118) and to seek
enforcement of those orders in appropriate United States courts of
appeals (5 U.S.C. (Supp. V) 7123(b)).  Persons, including federal
agencies, who are aggrieved by any final FLRA order may seek judicial
review in the courts of appeals.  5 U.S.C. (Supp. V) 7123(a).

   2. This case concerns the proper interpretation of 5 U.S.C. (Supp.
V) 7131(a), which provides that federal agencies must grant "official
time" to employee negotiators who represent their union in collective
bargaining with the agency during hours they would otherwise be in a
duty status.  A grant of official time allows employee union
representatives to be paid as if they were at work, without being
charged for annual leave.  Under the original Exec. Order No. 10988,
granting of official time for employee union representatives was
solely within an agency's discretion.  See 3 C.F.R. 521, 524-525
(1959-1963 Compilation);  United States Dept't of Agriculture v. FLRA,
691 F.2d 1242, 1243-1244 & n.2 (8th Cir. 1982), petition for cert.
pending, No. 82-979 (filed Dec. 13, 1982).  The original executive
order did not mention employee union representatives' travel expenses
and per diem allowances in connection with negotiations.  Id. at
1243-1244.

   In 1965, the Comptroller General determined that Exec. Order No.
10988 did not permit payment of union travel costs or overtime
compensation for collective bargaining.  See 44 Comp. Gen. 617, 618.
The Comptroller General reasoned that although collective bargaining
may contribute to the effective conduct of public business, employee
union representatives could not be said to be conducting official
business during negotiations.  Rather, the negotiating activities of
such representatives were primarily in the interest of the employee
organization they represented.  Ibid.

   The Comptroller General subsequently modified this absolute
prohibition.  See 46 Comp. Gen. 21, 21-22 (1966).  Although the
Comptroller General concluded that as a general rule federal agencies
should not pay travel expenses for employee bargaining agents who
attended negotiation sessions, he determined that such expenses could
be paid if, consistent with new Civil Service Commission guidelines,
an agency head certified that the employee representatives' travel
would be in the parimary interest of the government.  Ibid.  For
example, an agency might find that it would be in the primary interest
of the government to meet at a particular site and that it would be
more economical to pay travel costs for employee union representatives
than to pay such costs for agency representatives to travel to a
different site.  Ibid.

   In 1970, Exec. Order No. 11491 superseded Exec. Order No. 10988.
The new order originally stated flatly that federal employees
representing a union in negotiations with management could not receive
official time for negotiations.  See 3 C.F.R. 861-862, 873-874
(1966-1970 Compilation);  United States Dept't of Agriculture v. FLRA,
supra, 691 F.2d at 1244.  In 1971, following a review of the federal
labor relations program, Exec. Order No. 11491 was amended by Exec.
Order No. 11616.  See 3 C.F.R. 605 (1971-1975 Compilation);  United
States Dep't of Agriculture v. FLRA, supra, 691 F.2d at 1244.  The
amendment allowed agencies to agree to grant official time for
employee union representatives up to 40 hours or up to one-half the
time spent in negotiations during regular working hours.  Id. at
1244-1245.  In spite of this change with respect to official time,
Exec. Order No. 11491 as amended still did not authorize agencies to
pay travel expenses or per diem allowances for employees serving as
union representatives.  Id. at 1245;  Pet. App. 42a n.6;  Federal
Labor Relations Council, Report and Recommendations on the Amendment
of Executive Order 11491 (Legis. Hist. 1258, 1264).  /4/

   When Congress enacted Title VII of the Civil Service Reform Act of
1978, it changed certain of the prior executive order policies.  In
particular, Congress provided in 5 U.S.C. (Supp. V) 7131(a) for the
grant of essentially unlimited amounts of official time for certain
employee union representatives engaged in negotiation of a collective
bargaining agreement.  However, neither Title VII nor its legislative
history contained any reference to travel payments or per diem
allowances for these employee union bargaining agents.

   3. In November 1978, petitioner, the Bureau of Alcohol, Tobacco and
Firearms of the Department of the Treasury, notified the National
Treasury Employees Union ("the Union") that it intended to move its
Lodi, California, office to Sacramento, and to establish a reduced
duty post at a new location in Lodi (Pet. App. 2a).  The Union, which
represented some of the Bureau's employees affected by the relocation,
informed the Bureau that it wished to negotiate concerning the move
and its impact on employees in the bargaining unit (id. at 22a).  The
Union designated as its bargaining agent for these negotiations Donald
Pruett, a Bureau employee who lived in Madera, California, and was
stationed in Fresno (id. at 2a).  Pruett nofified the Bureau that he
wished to inspect the new facilities (Keehan deposition of March 7,
1980, at 11).  /5/ Bureau officials agreed to meet with Pruett at the
proposed Sacramento office to examine the facilities there and in Lodi
(Pet. App. 2a).

   On the morning of February 23, 1979, several Bureau officials met
Pruett in Sacramento and toured the offices.  They inspected the
physical facilities and the location of the desks, as well as the
availability of restrooms, a cafeteria, and parking (Tr. 28-29,
54-56).  Pruett "wandered around" by himself for a time, examining the
building and offices (id. at 28-29).  The parties then drove to Lodi
and, after lunch, toured the new reduced office site, examining the
proposed arrangement of desks, parking, and access to restaurants (id.
at 57-66).

   Pruett and the Bureau officials then went to the existing Lodi
office where they discussed the impact of the planned move (Pet. App.
2a).  Pruett pronounced the new facilities acceptable, except for
parking availability in Sacramento (id. at 24a-25a).  The parties
discussed assignment of employees to the two new offices and the
possibility of excusing employee tardiness for the first week in
Sacramento (id. at 25a).  On the day of negotiations, Pruett left his
home in Madera around 6:15 a.m. and returned at approximately 5:45
p.m., traveling a total of some 300 miles in his own car (ibid.; Tr.
36, 37).

   Pruett sought to have the February 23 session classified as a
quarterly meeting for which official time was authorized in the
collective bargaining agreement between the Union and the Bureau (Pet.
App. 3a).  The Bureau refused Pruett's request on the ground that the
agreement did not authorize official time for mid-term negotiations,
as opposed to the quarterly meetings (id. at 3a-23a).  /6/ The Bureau
informed Pruett that he could take either annual leave or leave
without pay for the day he had been away from his post (id. at 3a).

   4.  In June 1979, several months after the Bureau's decision not to
authorize official time for Pruett, the Union filed an unfair labor
practice charge with the FLRA.  The Authority's General Counsel issued
a complaint charging that Pruett was entitled to official time for his
day of touring and negotiating under 5 U.S.C. (Supp. V) 7131(a) (Pet.
App. 27a).  In the course of a hearing before an Administrative Law
Judge, the complaint was amended to add a claim that, in addition to
paying his salary, the Bureau should have paid Pruett's travel
expenses and a per diem allowance (id. at 3a).

   In December 1979, shortly before the General Counsel filed this
complaint against the Bureau, the FLRA had issued an Interpretation
and Guidance concerning official time and travel expenses and per diem
(2 F.L.R.A. No. 31 (1979);  Pet. App. 35a-47a).  /7/ In its
Interpretation, the Authority first concluded that under 5 U.S.C.
(Supp. V) 7131(a) federal agencies must grant official time to
employee union representatives for all types of collective bargaining,
including mid-term negotiations (Pet. App. 37a-41a).  The Authority
then found that, although Section 7131(a) and its legislative history
nowhere mention travel expenses or per diem allowances, that section
nonetheless requires federal agencies to pay such costs for all
employee union representatives for whom official time is granted for
collective bargaining activities (Pet. App. 41a-45a).

   Following the hearing, the Administrative Law Judge found that
negotiations had indeed taken place between Pruett and Bureau
officials on February 23, 1979 (Pet. App. 30a-31a).  The ALJ stated
that he considered himself constrained to follow the Authority's
recent Interpretation and Guidance (id. at 28a-29a).  He accordingly
recommended that the Bureau be ordered to grant Pruett official time
for the day of negotiations and to pay his travel costs and per diem,
and that it be required to post a notice stating that the Bureau would
do the same for employee union representatives in future negotiations
(id. at 32a-33a).

   The Bureau timely filed exceptions to the ALJ's decision.  In
September 1980, the Authority affirmed and adopted the decision of the
ALJ and ordered the recommended relief (Pet. App. 15a-19a).  The
Bureau then sought review in the court of appeals pursuant to 5 U.S.C.
(Supp. V) 7123(a), and the Union intervened as a party in that appeal.

   5. On appeal, the Bureau raised two issues:  (1) whether 5 U.S.C.
(Supp. V) 7131(a) requires agencies to grant official time to employee
union representatives for mid-term negotiations;  and (2) assuming
that official time is required, whether Section 7131(a) also requires
payment of travel expenses and per diem allowances of employee union
representatives.  The court of appeals enforced the Authority's order
on both issues (Pet. App. 1a-11a).

   The court first held that it must give deference to the Authority's
Interpretation and Guidance if it was reasoned and supportable (Pet.
App. 4a-5a).  The court concluded that the Authority's decision
regarding official time for mid-term bargaining was reasonable, citing
the language of the statute and its history (id. at 5a-9a).  /8/ The
court gave relatively little attention to the issue of travel costs
and per diem.  It recognized, as did the Authority, that neither the
statute nor its history refers to such payments (id. at 9a).  The
court reviewed the three reasons offered by the Authority in its
Interpretation and Guidance as support for the view that the statute
nonetheless requires payment of travel expenses and per diem /9/ and
concluded that the Authority's Interpretation appeared reasonable (id.
at 9a-10a).

                          SUMMARY OF ARGUMENT

   1. As the Federal Labor Relations Authority itself has conceded
(Pet. App. 42a), neither Title VII nor its history "expressly adverts
to the payment of travel expenses or per diem during participation in
* * * negotiation activities" (footnote omitted).  The provision the
Authority cites as the basis for requiring a federal agency to pay
travel expenses and per diem of employee union representatives -- 5
U.S.C. (Supp. V) 7131(a) -- refers only to authorization of "official
time" for such representatives.  The consistent practice prior to the
passage of Title VII was that federal agencies generally did not pay
union travel expenses and per diem.  This also is the rule in the
private sector.  The absence of any expression by Congress of an
intent to change the prevailing practice indicates acceptance of that
practice.  Although Congress did change certain features of the
federal labor-management relations program when it enacted Title VII,
it set out those changes explicitly in both the statute and the
legislative history, in contrast to its silence here.

   Rather than supporting the Authority's Interpretation, the
provisions of Title VII suggest that Congress did not intend that
federal agencies defray travel expenses and per diem of employee union
representatives.  Under 5 U.S.C. (Supp. V) 7131(a), the provision the
Authority cites, "official time" is authorized only for periods in
which an employee "otherwise would be in a duty status." Since travel
expenses and those expenses covered by a per diem allowance usually
occur outside normal duty hours, it is unlikely that Congress would
have used Section 7131(a) as a vehicle to require agency reimbursement
of such expenses.  Another section, 5 U.S.C. (Supp. V) 7101(b), states
that the provisions of Title VII are to be interpreted in a manner
consistent with "the requirement of an effective and efficient
Government." The Authority's Interpretation, which places virtually
the entire cost of negotiations on one party, applies unequal pressure
on the parties, thereby undermining the effectiveness of collective
bargaining.  Finally, the Authority's Interpretation is likely to
frustrate an important aim of Title VII -- reducing labor-management
friction in the federal sector.  Monitoring of the reasonableness of
union travel expenses would require agencies to intrude on internal
union affairs and would surely lead to disagreements about whether
particular expenses are justified.

   2. The conclusion of the court of appeals that the Authority's
Interpretation is correct is inconsistent with well-established
principles of statutory construction.  This Court has emphasized that
a statute should not be read in a manner that would impose significant
monetary liability on the government unless Congress has indicated
clearly that it intended such a result.  See United States v. Zazove,
334 U.S. 602, 616-617 (1948).  The Court also has made clear that
waivers of sovereign immunity are to be strictly construed and must be
unequivocally expressed.  See, e.g., United States v. Testan, 424 U.S.
392, 399 (1976).  The Authority's Interpretation, however, imposes
substantial monetary liability on federal agencies without any
indication that Congress favored that result.

   The principle on which the court of appeals did rely -- deference
to the statutory interpretation of an administrative agency -- is one
that is inappropriate in this case.  The Authority's Interpretation is
an interpretative rule and thus is entitled to less deference than a
rule promulgated under its rulemaking authority.  Moreover, the
Authority relied in large part on its construction of 5 U.S.C. (&
Supp. V) 5701-5709, a statute it does not administer.  Finally, the
Authority's Interpretation does not deserve deference because it
involves a major policy decision -- whether federal agencies should be
required to expend substantial sums to fund employee union travel and
per diem -- that is properly made by Congress.  See, e.g., NLRB v.
Brown, 380 U.S. 278, 291-292 (1965).

   3. The reasoning offered in the Authority's Interpretation in
support of the conclusion that 5 U.S.C. (Supp. V) 7131(a) requires
federal agencies to pay travel expenses and per diem of employee union
representatives cannot withstand scrutiny.  The Authority cited the
fact that its interpretation of Section 7131(a) was consistent with
its earlier construction of 5 U.S.C. (Supp. V) 7131(c), which
addresses authorization of "official time" for participation in
proceedings before the Authority.  But no court has approved the
Authority's construction of Section 7131(c), so that consistency does
not suggest that either interpretation is correct.

   The Authority also asserted that employee union representatives
must be regarded as conducting "official business" of the government
and therefore are entitled to receive travel expenses and per diem
under 5 U.S.C. (& Supp. V) 5701-5709.  However, Congress' conclusion
that federal sector collective bargaining is in the public interest
does not suggest that employee union representatives are conducting
"official business," since union representatives do not represent the
interests of the agency, but rather those of the union and members of
the bargaining unit.  Indeed, the Comptroller General has recognized
that employee union representatives who are on official time during
negotiations are not conducting official business, despite the fact
that collective ba-gaining may contribute to effective government.  44
Comp. Gen. 617, 618 (1965).  Similarly, the Administrator of General
Services, who is authorized to promulgate regulations for the
administration of 5 U.S.C. (& Supp. V) 5701-5709, has never indicated
that collective bargaining by employee union representatives
constitutes "official business."

   The Authority's final justification for its Interpretation was that
agency payment of union travel expenses and per diem would help
equalize the positions of union and agency negotiators.  But while
Congress itself took certain steps to alter the relative positions of
federal employee unions and agencies, there is no indication that it
delegated broad authority to the FLRA to take additional steps that
would alter the balance established by the express provisions of Title
VII.  Moreover, genuine equality would call for each party to bear its
own costs, as is the norm in the private sector.

   4. There is no question that Congress in enacting Title VII
intended to encourage collective bargaining in the public sector,
which it expressly found to be in the public interest.  See 5 U.S.C.
(Supp. V) 7101(a).  But the Authority's Interpretation does not
advance the interest in collective bargaining;  rather, it impedes it.
 The collective bargaining process is best served when each party to
negotiations uses its own resources to fund the out-of-pocket expenses
of its negotiators, not when one of the parties is required to
subsidize the entire process.

   The court below is the only court of appeals that has accepted the
Authority's Interpretation.  Three other courts of appeals have
rejected the view that Section 7131(a) requires federal agencies to
pay travel expenses and per diem allowances of employee union
representatives.  See Florida National Guard v. FLRA, No. 81-5466
(11th Cir. Mar. 7, 1983);  Div. of Military & Naval Affairs v. FLRA,
683 F.2d 45 (2d Cir. 1982), petition for cert. pending, No. 82-1021
(filed Dec. 16, 1982);  United States Dep't of Agriculture v. FLRA,
691 F.2d 1242 (8th Cir. 1982), petition for cert. pending, No. 82-979
(filed Dec. 13, 1982).  Those courts correctly concluded that Congress
did not intend to impose this unprecedented requirement on federal
agencies and the federal fisc.

                               ARGUMENT

 TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978, 5 U.S.C. (SUPP. V)
7131(a), DOES NOT REQUIRE THAT A FEDERAL AGENCY PAY A PER DIEM
ALLOWANCE AND TRAVEL EXPENSES TO EMPLOYEE UNION REPRESENTATIVES
ENGAGED IN COLLECTIVE BARGAINING WITH THE AGENCY

 A. Neither the Language of Title VII Nor Its History Indicates That a
Federal Agency Must Pay a Per Diem Allowance and Travel Expenses to
Employee Union Representatives Engaged in Collective Bargaining with
the Agency

   Nothing in the language or legislative history of Title VII
suggests that Congress intended to require federal agencies to pay a
per diem allowance and travel expenses to employee union
representatives engaged in collective bargaining with the agency.  The
Federal Labor Relations Authority itself has conceded (Pet. App. 42a)
that neither Title VII nor its history "expressly adverts to the
payment of travel expenses or per diem during participation in * * *
negotiation activities." The Authority nevertheless concluded that
such payments are required by 5 U.S.C. (Supp. V) 7131(a), a section of
Title VII.  In fact, Section 7131(a) refers only to grants of
"official time" to employee union representatives and nowhere mentions
the wholly separate issue of travel expenses and per diem.  /10/ Nor
is there any mention of travel expenses and per diem in any other
section of Title VII or in the considerable legislative history of the
statute.  Congress' total silence on the subject strongly indicates
that it did not intend to impose an unprecedented requirement that
federal agencies pay such expenses.

   1. Several considerations make it quite unlikely that Congress
would have imposed an obligation on agencies to pay travel expenses
and per diem of employee union representatives without even mentioning
that subject.  As described at pages 5-7, supra, the consistent
practice prior to the passage of Title VII was that agencies did not
pay such costs;  in fact, under the decision of the Comptroller
General, agencies were prohibited from doing so as a general rule.
See 46 Comp. Gen. 21 (1966).  The Federal Labor Relations Council, the
Authority's predecessor, recognized this consistent practice in its
1971 report.  See Legis. Hist. 1264.  Thus, the normal pattern at the
time Title VII was enacted was for each party to a negotiation to
defray the expenses of its own representatives.  See Pet. App. 42a
n.6.

   In view of this settled practice and the absence of any expressions
of congressional intent to change it, Title VII should not be read to
mandate a departure from the prior pattern.  See Finnegan v. Leu, No.
80-2150 (May 17, 1982), slip op. 9 n.12 ("We think it virtually
inconceivable that Congress would have prohibited (a) long-standing
(union) practice * * * without any discussion in the legislative
history of the Act");  Florida National Guard v. FLRA, No. 81-5466
(11th Cir. Mar. 7, 1983), slip op. 1884 (congressional silence
concerning union travel expenses and per diem indicates acceptance of
the pre-Title VII practice).  It must be presumed that Congress was
aware of the existing practice when it enacted Title VII.  See
Lorillard v. Pons, 434 U.S. 575, 580-581 (1978).  Congress' failure
affirmatively to alter the settled practice indicates that it intended
not to reverse the practice, but rather to codify it.  See Haig v.
Agee, 453 U.S. 280, 300 (1981);  Lorillard v. Pons, supra, 434 U.S. at
580;  Shapiro v. United States, 335 U.S. 1, 16 (1948).  See also
Burnett v. Harmel, 287 U.S. 103, 108 (1932).  Moreover, since a switch
to a requirement that agencies pay per diem and travel expenses for
employee union representatives would force agencies to make
substantial expenditures from their limited funds, it is particularly
unlikely that Congress would have made such a change sub silentio.
/11/ The legislative history does not indicate that Congress
anticipated that passage of Title VII would result in increased travel
expenditures for virtually all federal agencies, as the Authority's
Interpretation would require.  See H.R. Rep. No. 95-1403, 95th Cong.,
2d Sess. 89-98 (1978) cost estimates for Civil Service Reform Act of
1978).

   There is no question that Congress intended to make certain changes
in the federal labor-management relations program when it enacted
Title VII.  However, it expressly articulated those changes in both
the statute itself and the legislative history.  For example, Section
20 of Exec. Order No. 11491, 3 C.F.R. 873 (1966-1970 Compilation)
allowed agencies to agree to grants of official time to employee union
negotiators up to 40 hours or up to one-half of the bargaining time
during regular working hours (see page 6, supra).  The Senate version
of Title VII would have continued these limitations (see S. Rep. No.
94-969, 95th Cong., 2d Sess. 112 (1978);  Legis. Hist. 772), while the
House bill provided for unlimited official time for employee union
negotiators during the hours they otherwise would be in a duty status
(H.R. Rep. No. 95-1403, supra, 58;  Legis. Hist. 704).  During the
debate on Title VII, there was specific discussion of a revision in
the official time policy (see, e.g., 124 Cong. Rec. 29188 (1978)), and
Congress adopted the House approach, which was codified in 5 U.S.C.
(Supp. V) 7131.  This express change with respect to official time
stands in sharp contrast to Congress' complete silence on the subject
of travel expenses and per diem.  That silence suggests an intent to
retain the settled practice.  See, e.g., United States v. Rutherford,
442 U.S. 544, 554 n.10 (1979);  Saxbe v. Bustos, 419 U.S. 65, 74
(1974).  This conclusion is reinforced by the statement of
Representative Udall, the primary sponsor of Title VII:  "What we
really do is to codify the 1962 action of President Kennedy in setting
up a basic framework of collective bargaining for Federal employees.
* * * The Federal employee unions do not get much out of this
amendment process that is not already in the Executive order." 124
Cong. Rec. 29182 (1978);  Legis. Hist. 923.  /12/

   Another indication that Congress did not intend any implicit change
in the treatment of union travel expenses and per diem is that payment
by the employer of such expenses is not the norm in the private
sector.  The National Labor Relations Board has compelled employers to
pay union travel expenses only as an extraordinary remedy for an
employer's failure to bargain in good faith.  See Div. of Military &
Naval Affairs v. FLRA, 683 F.2d 45, 48-49 (2d Cir. 1982), petition for
cert. pending, No. 82-1021 (filed Dec. 16, 1982);  Marriott In-Flite
Services, 258 N.L.R.B. 755 n.1, 770 (1981);  J.P. Stevens & Co., 239
N.L.R.B. 738, 739, 773 (1978).  /13/ Cf. Library of Congress v. FLRA,
No. 82-1240 (D.C. Cir. Feb. 24, 1983), slip op. 13 (reference to
private sector precedent may be relevant to determination of public
sector bargaining issues arising under Title VII).  As the Second
Circuit has observed, "(o)ne of the obvious and universal purposes of
collecting union dues is to pay for the expenses of such important
activities as collective bargaining with the employer." Div. of
Military & Naval Affairs v. FLRA, supra, 683 F.2d at 49.  Given the
pre-Title VII practice with respect to union travel expenses and per
diem in the federal sector and the prevailing practice in the private
sector, Congress surely would have expressed affirmatively any intent
to impose a new and different rule.  See Weinberger v. Rossi, 456 U.S.
25, 32 (1982);  NLRB v. Bell Aerospace Co., 416 U.S. 267, 278-279, 285
n.13 (1974).  There is no such expression here.  Accordingly, it is
most unlikely that Congress would have "meant the government to assume
such an unusual burden, so different from any accepted practice in
dealings between employers and employees, absent a clear and specific
provision to that effect." Div. of Military & Naval Affairs v. FLRA,
supra, 683 F.2d at 49.

   2. If anything, the provisions of Title VII indicate that, contrary
to the FLRA Interpretation and Guidance, Congress had no intention of
requiring federal agencies to pay travel expenses and per diem of
employee union negotiators.  Section 7131(a) itself refers to official
time for employees in terms of the period they "otherwise would be in
a duty status." But per diem allowances are primarily designed to
cover expenses usually incurred outside the time an employee normally
would be in a duty status -- breakfast, dinner, and overnight lodging.
 Travel expenses also frequently are incurred outside an employee's
regular duty hours.  Thus, the reference to duty status suggests that
Congress did not view Section 7131(a) as a vehicle for requiring
federal agencies to pay for union travel expenses and per diem.

   In addition, the Authority's ruling on travel expenses and per diem
cannot be squared with Congress' mandate that the provisions of Title
VII are to be interpreted in a manner consistent with "the requirement
of an effective and efficient Government." See 5 U.S.C. (Supp. V)
7101(b).  A system under which one party bears virtually the entire
costs of negotiation -- including salaries, travel expenses and per
diem allowances for both its own representatives and those of the
other party to the negotiation -- does not advance that goal.  Such a
system is bound to impose unequal pressure on the parties at the
bargaining table, since only one party, the agency, incurs the cost of
prolonged negotiations.  See Florida National Guard v. FLRA, supra,
slip op. 1885 n.11 (characterizing Authority's position on travel
expenses and per diem as "a windfall to unions, which would no longer
bear the same economic incentive as the Government to negotiate
quickly and effectively").  /14/ As a result, agencies may be forced
to compromise at an early stage, particularly when agency budgets are
tight.  Bargaining under these circumstances cannot be regarded as
either effective or efficient from the perspective of the government
as a whole or of the public interest.

   Finally, the Authority's interpretation frustrates one of the most
important policies underlying the statute -- reducing labor-management
friction in the federal sector.  See 5 U.S.C. (Supp. V) 7101(a)(1)(C)
(finding that collective bargaining "facilitates and encourages the
amicable settlement of disputes between employees and their employers
involving conditions of employment").  A requirement that agencies pay
union travel expenses and per diem tends to increase such friction
rather than reduce it.  An agency that pays for union travel
presumably must monitor and control that travel on a regular basis to
ensure that it is reasonable and necessary, as part of the agency's
responsibility to account for expenditure of public funds.  /15/ Thus,
the agency would be obliged to regulate what otherwise would be
internal union matters, such as manner of travel for union
representatives, locations from which they travel, and length of their
stays.  Such monitoring will lead inevitably to disagreements between
unions and agencies.  Moreover, it forces agencies to take actions
that encroach on the independence of unions in a manner that Congress
could not have intended.  See, e.g., 5 U.S.C. (Supp. V) 7116(a)(3)
(making it an unfair labor practice for an agency to sponsor, control,
or otherwise assist any labor organization, except with respect to
routine services and facilities).  /16/

   The tension between agencies and unions caused by the Authority's
Interpretation is well illustrated by Dept't of the Air Force, Air
Force Logistics Command and AFGE, Council 214, 10 F.L.R.A. No. 53
(Sept. 30, 1982).  In that case the Air Force declined to pay travel
expenses and per diem allowances for certain employee union
negotiators whom the union wished to bring from a distant location,
because the union failed to explain why employee union representatives
stationed at the bargaining site, rather than those stationed at the
distant location, could not be used for the negotiations.  The union's
refusal to justify its expenditures made it impossible for the Air
Force to certify that the travel demanded by the union was essential,
as required by departmental regulations.  The union filed an unfair
labor practice charge, and the Authority concluded that the Air
Force's failure to pay for the travel demanded by the union
constituted an unfair labor practice, despite the fact that payment in
the absence of explanation would have violated governing regulations.

   Similar disputes are certain to arise in other agencies and in
other locations.  Unless agencies surrender complete control over a
certain percentage of funds set aside for travel, they will have to
exercise some control over how unions spend travel funds.  Dissension
is especially likely toward the end of each fiscal year when agency
funds may be scarce and many agencies must eliminate all but essential
expenditures and travel.  An agency's refusal to provide complete
reimbursement for union travel because it has limited travel to those
trips that are essential to the agency's mission will surely trigger
more disagreements between agencies and unions, thus undermining the
harmony Congress sought to foster.  /17/

 B. The Court of Appeals Failed to Apply, or Misapplied,
Well-Established Principles of Statutory Construction in Affirming the
Authority's Interpretation of 5 U.S.C. (Supp. V) 7131(a)

   1. As the preceding section indicates, there is not a shred of
evidence in Title VII or its history that Congress intended to require
an agency to pay the travel expenses and per diem of employee union
representatives engaged in collective bargaining with the agency.
Given the absence of any indication of congressional intent to impose
such a requirement, the court of appeals' affirmance of the
Authority's Interpretation and Guidance is clearly contrary to
well-established rules of statutory construction.

   In United States v. Zazove, 334 U.S. 602 (1948), this Court
declined to read the National Service Life Insurance Act of 1940 in a
manner that would increase substantially the cost to the United States
in the absence of an express statement that Congress intended such a
result, despite the respondent's argument that such a reading would
effectuate the beneficial purposes of the Act.  The Court observed
that "Congress nowhere specified that the United States would bear the
huge cost of the enhanced liability" that would result from the
interpretation urged by the respondent (id. at 616-617) and concluded
that "that striking omission is persuasive, in the absence of cogent
considerations to the contrary, that no generosity of this magnitude
was contemplated" (id. at 617;  footnote omitted).  The Court cited
(id. at 617 n.24) the statement of Mr. Justice Holmes, writing for the
Court in Pine Hill Coal Co. v. United States, 259 U.S. 191, 196
(1922):  "A liability in any case is not to be imposed upon a
government without clear words * * * and where, as here, the liability
would amount to great sums, only the plainest language could warrant a
court in taking it to be imposed * * * ." See also United States v.
MacCollom, 426 U.S. 317, 321 (1976) (plurality opinion;  citation
omitted):  "The established rule is that the expenditure of public
funds is proper only when authorized by Congress, not that public
funds may be expended unless prohibited by Congress."

   The principle articulated in Zazove counsels against interpreting 5
U.S.C. (Supp. V) 7131(a) in a manner that requires agencies to pay
travel expenses and per diem for employee union representatives.  The
Eighth Circuit recognized that application of the principle leads to
rejection of the Authority's Interpretation:  "Because we are
unwilling to impose additional financial liability on the Government
without an affirmative directive from Congress, we prefer the
interpretation that does not make the Government liable for (travel
expenses and per diem of employee union representatives)." United
States Dept't of Agriculture v. FLRA, 691 F.2d 1242, 1247 (1982),
petition for cert. pending, No. 82-979 (filed Dec. 13, 1982).  See
also Florida National Guard v. FLRA, supra, slip op. 1885 (rejecting
the view "that Congress, without the briefest of references to the
matter, intended the Government to assume this potentially enormous
financial liability").

   Indeed, the court of appeals' ruling is contrary to the more
general principle that waivers of sovereign immunity must be strictly
construed.  See United States v. Kubrick, 444 U.S. 111, 117-118
(1979);  United States v. Sherwood, 312 U.S. 584, 590 (1941).  A
waiver of sovereign immunity may not be implied, but must be
unequivocally expressed.  See, e.g., United States v. Mitchell, 445
U.S. 535, 538 (1980);  United States v. Testan, 424 U.S. 392, 399
(1976).  The Court's decision in Testan makes clear that these
principles are fully applicable to a monetary claim by a federal
worker arising out of an employment relationship.  /18/ See also Army
& Air Force Exchange Service v. Sheehan, No. 80-1437 (June 1, 1982).
Because Congress made no mention of agency payment of travel expenses
and per diem of employee union representatives in either Title VII or
its history, there is no unequivocally expressed waiver of sovereign
immunity that would permit a court to enforce an order mandating such
payments.  /19/

   2. Instead of applying the relevant principles of statutory
construction stated in Zazove and in the cases involving waivers of
sovereign immunity, the court of appeals invoked the principle of
deference to an agency's construction of a statute it administers.
The court concluded that the Authority's Interpretation should be
given deference if it is "reasoned and supportable" and if it is
"reasonably defensible" (Pet. App. 5a).  But such deference is
inappropriate in this case.  As the court of appeals recognized (id.
at 4a), the Interpretation and Guidance is an interpretative rule and
therefore is entitled to less weight than a rule issued pursuant to
the FLRA's rulemaking authority.  See General Electric Co. v. Gilbert,
429 U.S. 125, 141 (1976).  See also Florida National Guard v. FLRA,
supra, slip op. 1881.  Moreover, courts are the final authorities on
issues of statutory construction (see SEC v. Sloan, 436 U.S. 103, 118
(1978)), and they "are not obliged to stand aside and rubber-stamp
their affirmance of administrative decisions that they deem
inconsistent with a statutory mandate or that frustrate the
congressional policy underlying a statute." NLRB v. Brown, 380 U.S.
278, 291-292 (1965).  Finally, "'(t)he deference owed to an expert
tribunal cannot be allowed to slip into a judicial inertia which
results in the unauthorized assumption by an agency of major policy
decisions properly made by Congress.'" Id. at 292, quoting American
Ship Building Co. v. NLRB, 380 U.S. 300, 318 (1965).  Whether to
require federal agencies to expend substantial sums to fund employee
union travel and per diem is plainly a "major policy decision()
properly made by Congress."

   Deference to the Authority is particularly unwarranted in this case
because its Interpretation is based largely on construction of a
statute it does not administer.  See Florida National Guard v. FLRA,
supra, slip op. 1882;  United States Dept. of Agriculture v. FLRA,
supra, 691 F.2d at 1247;  Div. of Military & Naval Affairs v. FLRA,
supra, 683 F.2d at 48.  The Authority reasoned (Pet. App. 43a) that
employee union representatives who were authorized "official time" for
collective bargaining activity pursuant to Section 7131(a) must be
conducting the "official business" of the government within the
meaning of 5 U.S.C. (& Supp. V) 5701-5709.  Under 5 U.S.C. (& Supp. V)
5702 employees "traveling on official business" are entitled to
receive a per diem allowance.  But Section 5702 and other parts of 5
U.S.C. (& Supp. V) 5701-5709, are administered not by the Authority
but by the General Services Administration.  In 5 U.S.C. 5707(a),
Congress has delegated to the Administrator of General Services the
authority to prescribe regulations necessary for the administration of
5 U.S.C. (& Supp. V) 5701-5709.  As we discuss below, GSA has never
construed the term "official business," as used in 5 U.S.C. (& Supp.
V) 5701-5709, in the manner adopted by the FLRA.

 C. The Reasoning Offered by the Authority in Support of Its
Interpretation of 5 U.S.C. (Supp. V) 7131(a) Cannot Withstand Scrutiny

   The court of appeals deferred to the FLRA on the question of per
diem allowances and travel expenses because it concluded that the
Authority's Interpretation and Guidance was "reasoned and supportable"
(Pet. App. 11a).  But an examination of the Authority's reasoning
shows that none of the three justifications offered by the Authority
in support of its Interpretation can withstand scrutiny.  Indeed,
three other courts of appeals have found the Authority's reasoning to
be unpersuasive.  See Florida National Guard v. FLRA, supra;  United
States Dep't of Agriculture v. FLRA, supra;  Div. of Military & Naval
Affairs v. FLRA, supra.

   1. First, the court below found it significant (Pet. App. 9a) that
the Authority had read Section 7131(a) consistently with its prior
interpretation of 5 U.S.C. (Supp. V)7131(c).  Section 7131(c) states
that the Authority may require authorization of official time for
employees participating on behalf of their unions in proceedings
before the Authority.  Although Section 7131(c), like Section 7131(a),
nowhere mentions travel expenses or per diem allowances, the Authority
had concluded that Section 7131(c) allows it to require agencies to
pay such costs for employees who participate on behalf of their unions
in Authority proceedings.  See 5 C.F.R. 2429.13.  But the Authority
did not offer any reasons for its interpretation of Section 7131(c)
when it promulgated its interim regulations.  See 44 Fed. eg. 44740,
44771 (1979).  Moreover, no court has yet determined whether the
Authority's reading of Section 7131(c) is proper.  Thus, it is as
unsupported as the Authority's construction of Section 7131(a).  The
fact that the Authority has interpreted the two provisions
consistently does not suggest that either interpretation is correct.
See United States Dep't of Agriculture v. FLORA, supra, 691 F.2d at
1250 n.18.

   2. Second, the court below accepted (Pet. App. 10a) the Authority's
assertion that, because Congress declared collective bargaining in the
federal sector to be in the public interest (see 5 U.S.C. (Supp. V)
7101(a)), employees serving as union bargaining agents must be
conducting the "official business" of the government and therefore are
entitled to receive travel expenses and per diem under 5 U.S.C. (&
Supp. V) 5701-5709.  The latter statute provides for payment of a per
diem allowance for "an employee while traveling on official business
away from his designated post of duty." 5 U.S.C.  & Supp. V) 5702.
But nothing in 5 U.S.C. (& Supp. V) 5701-5709, itself or in
regulations issued by the Administrator of General Services indicates
that collective bargaining by employee union representatives qualifies
as "official business" within the meaning of the statute.  /20/ The
Administrator has concluded that each individual agency is in the best
position to determine when its employees are engaged in "official
business" within the meaning of 5 U.S.C. (& Supp. V) 5701-5709.  See
FPMR 101-7, GSA Bulletin FPMR A-40, Supp. 1, Ch. 101.4 (Sept. 28,
1981) (except as otherwise provided by law, official travel must be
authorized by the head of the agency or by an official to whom such
authority has been delegated).  The Authority's attempt to override
the determinations of individual agencies in the area of collective
bargaining thus is inconsistent with the Administrator's decision
concerning how the statute should be administered.

   The term "official business" normally refers to work done on behalf
of an agency pursuant to a directive from an agency supervisor.  But
an employee negotiating on behalf of his union obviously must be
beyond the authority of the agency when he acts in that capacity.
/21/ Unlike an agency representative, a union representative does not
act on behalf of the agency;  instead, his goal is to gain benefits
for the members of the bargaining unit (including himself) and for the
union.  The Authority's conclusion that employee union representatives
are engaged in "official business" seems to assume that opposing
parties in collective bargaining pursue the same goals.  However, as
this Court recently observed:  "The entire process of collective
bargaining is structured and regulated on the assumption that "(t)he
parties * * * still proceed from contrary and to an extent
antagonistic viewpoints and concepts of self-interest.'" General
Building Contractors Ass'n, Inc. v. Pennsylvania, No. 81-280 (June 29,
1982), slip op. 18, quoting NLRB v. Insurance Agents, 361 U.S. 477,
488 (1960).

   The Comptroller General has recognized the important difference
between employee union representatives who are on official time during
negotiations with an agency and employees who are conducting official
business on behalf of the agency.  Under the system that existed prior
to passage of Title VII, employee union negotiators could receive
official time for collective bargaining activities on a limited basis.
 The Comptroller General ruled that even though union/agency
negotiations could be conducted on official time and "may contribute
to the effective conduct of public business," employee union
representatives could not be considered as conducting the official
business of the United States.  44 Comp. Gen.617, 618 (1965).  The
Comptroller General concluded:  "On the contrary it would seem that
such negotiations by employee representatives are primarily in the
intrest of the employee organization" (ibid.).  /22/ Although the
Comptroller General's decision was issued while the executive order
program was in effect, the distinction he drew between "official time"
and "official business" is relevant under Title VII as well.  See
United States Dep't of Agriculture v. FLRA, supra, 691 F.2d at 1248
n.11.

   The Authority's reliance on Congress' general policy statements
that federal sector collective bargaining is "in the public interest"
and "contributes to the effective conduct of public business * * * "
(5 U.S.C. (Supp. V) 7101(a)(B)) is misplaced.  The Authority's
reasoning, as the Eighth Circuit pointed out in United States Dep't of
Agriculture v. FLRA, supra, 691 F.2d at 1248 (footnote omitted),
"ignores the difference between the interest of the public at large
and the interest of the Government as employer.  While collective
bargaining is generally in the public interest, employees representing
their unions in collective bargaining do not primarily advance the
interest of the Government." See also Div. of Military & Naval Affairs
v. FLRA, supra, 683 F.2d at 48 (Congress' "general declaration of
policy is 'too thin a reed' to support a substantive ruling which
would cost the federal government substantial sums of money in per
diem and travel expenses");  Florida National Guard v. FLRA, supra,
slip op. 1884 ("Congress' declaration that the statutory protection of
collective bargaining is in the public interest does not imply an
intent to underwrite the process entirely").  /23/

   If Congress had wished to provide that collective bargaining
constitutes "official business" within the meaning of 5 U.S.C. (&
Supp. V) 5701-5709, it could easily have so stated when it drafted
Title VII.  Its failure to do so suggests that it did not intend to
equate the two types of activities.  See Florida National Guard v.
FLRA, supra, slip op. 1882 (characterizing as a great leap of faith"
the Authority's equation of negotiation on "official time" with being
engaged on "official business for the Government").

   3. Finally, the court below accepted (Pet. App. 10a) the
Authority's reasoning that agency payment of union travel expenses and
per diem would help equalize the positions of union representatives
and management representatives.  The Authority concluded that Congress
had intended that union and agency representatives be accorded
"similar prerogatives" (id. at 43a), citing only a statement by
Representative Clay to the effect that labor organizations "should be
allowed official time to carry out their statutory representational
activities just as management uses official time to carry out its
responsibilities" (Pet. App. 44a, quoting 124 Cong. Rec. 29188 (1978)
(emphasis added)).  However, Representative Clay's statement refers
only to official time;  he nowhere mentions either travel expenses and
per diem or any general obligation of agencies to equalize bargaining
positions or "prerogatives" of the parties.  /24/ See Florida National
Guard v. FLRA, supra, slip op. 1883 n.9;  United States Dep't of
Agriculture v. FLRA, supra, 691 F.2d at 1249-1250.  Thus, the
statement cited does not support the broad conclusion reached by the
Authority.

   Title VII itself indicates that Congress did not intend to create
absolute equality between unions and agencies.  In Section 7131(a)
Congress expressly limited official time for employee union
representatives to periods in which the employees otherwise would be
in a duty status.  No such limitation was imposed with respect to
agency representatives.  In addition, a union must bear the full cost
of attendance at negotiations by any nonemployee negotiators (e.g.,
members of the union's national staff).  Congress did not impose any
requirement that unions be provided with various services or items,
such as secretarial support, calculators or briefcases, that might be
thought necessary to equalize the positions of the parties.  Although
Congress itself took certain limited steps to alter the relative
positions of federal employee unions and agencies, such as the change
in the official time policy, there is no evidence that it delegated
broad authority to the FLRA to order any additional steps that would
alter the balance established by the express provisions of Title VII.

   Moreover, genuine equality of treatment would call for each party
to bear its own out-of-pocket costs, as is the norm in the private
sector (see page 20, supra).  Federal employee unions have financial
resources that can be used for payment of members' travel expenses and
per diem.  See 5 U.S.C. (Supp. V) 7115 (providing for collection of
union does).  See also Florida National Guard v. FLRA, supra, slip op.
1884 (union dues are collected for expenses such as travel and per
diem).  Thus, employee union representatives would not necessarily pay
their own expenses;  instead, they would be in a position similar to
that of agency negotiators, whose expenses are paid by the agency they
represent.  Under the Authority's Interpretation, however, one party
bears virtually the full cost of both parties to the negotiations -- a
result that is difficult to square with either the principle of
equality or the goal of effective and efficient collective bargaining.
 See pages 21-22, supra.  As the Eleventh Circuit has pointed out:
"If the entire financial burden of the negotiating process were
shouldered by the Government, inequality -- not equality -- of
bargaining status would result." Florida National Guard v. FLRA,
supra, slip op. 1884-1885.

   In sum, neither the principle of equality nor the other
justifications offered by the Authority can support its conclusion
that Congress meant for the federal government, rather than the unions
themselves, to underwrite the travel expenses and per diem of employee
union representatives engaged in collective bargaining with federal
agencies.  /25/

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL McGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   CAROLYN F. CORWIN

      Assistant to the Solicitor General

   WILLIAM KANTER

   DOUGLAS LETTER

      Attorneys

   APRIL 1983

   /1/ Certain federal employees, including members of the uniformed
services and the Foreign Service, and certain agencies, including the
General Accounting Office, Federal Bureau of Investigation, Central
Intelligence Agency, and National Security Agency, are excluded from
the coverage of Title VII.  See 5 U.S.C. (Supp. V) 7103(a)(2) and (3).
 United States Postal Service employees also are excluded from Title
VII coverage, since labor relations matters involving those employees
are within the jurisdiction of the National Labor Relations Board.
See 39 U.S.C. 1209.

   /2/ The executive order program was revised and continued by Exec.
Order No. 11491, 3 C.F.R. 861 (1966-1970 Compilation), as amended by
Exec. Orders Nos. 11616, 11636, and 11838, 3 C.F.R. 605, 634
(1971-1975 Compilation) and 3 C.F.R. 957 (1971-1975 Compilation).

   /3/ The FLRA replaced the Federal Labor Relations Council, which
had similar responsibilities under the executive order program.

   /4/ The Federal Labor Relations Council report is 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 (Comm. Print 1979)
("Legis. Hist.").

   /5/ The deposition of Mardell Keehan, a Bureau personnel
specialist, is part of the record in this case (Tr. 8-11, 68-69).
"Tr." refers to the transcript of the February 27, 1980, hearing
before the FLRA Administrative Law Judge.

   /6/ The agreement also made no reference to payment of a per diem
allowance or travel expenses of employee union representatives engaged
in collective bargaining (R. 136).

   /7/ Although the Authority provided a notice and comment period,
the Interpretation apparently was issued not under the Authority's
statutory power to promulgate regulations (5 U.S.C. (Supp. V) 7134),
but rather under 5 U.S.C. (Supp V) 7105(a)(1), which requires the
Authority to provide leadership in establishing policies and guidance
relating to federal labor-management relations (Pet. App. 4a).

   /8/ We have not sought review of this aspect of the court's
decision.

   /9/ The court summarized (Pet. App. 9a-10a) the three reasons set
out in the Authority's Interpretation and Guidance.  The Authority had
cited the fact that the language of Section 7131(a) is similar to that
of 5 U.S.C. (Supp. V) 7131(c), which the Authority previously had
interpreted as requiring payment of union travel expenses and per
diem.  (Section 7131(c) governs availability of official time for
participation in proceedings before the Authority;  like Section
7131(a), it does not mention travel expenses or per diem.) In
addition, the Authority had concluded that employee union negotiators
who were on official time while they were engaged in collective
bargaining must be considered to be conducting "official business," so
that they would be entitled to travel expenses and per diem under a
separate statute, 5 U.S.C. (& Supp. V) 5702.  Finally, the Authority
had stated that payment of travel expenses and per diem would be
consistent with a congressional intent in Title VII to equalize the
positions of management and labor.

   /10/ 5 U.S.C. (Supp. V) 7131(a) provides:

         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.

   /11/ Union travel expenses and per diem can add up to a significant
amount.  Soon after the Authority issued its Interpretation and
Guidance stating that Title VII requires federal agencies to pay such
costs, an official of the Office of Personnel Management estimated
that the new interpretation would cost 15 federal agencies over $2
million per year.  See Gov't Empl. Rel. Rep. (BNA) No. 852, at 11
(Mar. 10, 1980).  Payment of these expenses can impose a substantial
burden on agencies.  For example, in EEOC and EEOC Council 216, AFGE,
80 F.S.I.P. 38, at 5 n.6 (Dec. 4, 1980), a Factfinder's Report for the
Federal Service Impasses Panel noted that, out of a total cost of
$445,140 for negotiation of a basic collective bargaining agreement
covering a single agency, travel expenses and per diem for employee
union representatives amounted to $107,302.  This amount was in
addition to the $110,357 spent by the agency on salaries of the
employee union representatives during the negotiations.

   Within a year of the passage of Title VII, Congress indicated that
its desire was to reduce agency travel expenditures, not to raise
them.  In September 1979, Congress enacted Section 501 of Pub. L. No.
96-74, 93 Stat. 572, the Treasury, Postal Service and General
government appropriations bill, which restricted travel funds for the
covered agencies to the amounts set forth in the agency budget
estimates.  A month later, Congress voted by joint resolution (Section
112 of Pub. L. No. 96-86, 93 Stat. 661) to reduce substantially the
amounts spent on government travel in the following fiscal year.

   /12/ We do not suggest that the Authority is bound by rules set by
its predecessor, the Federal Labor Relations Council.  Rather, our
argument is that the Authority is bound by congressional intent and
that Congress did not intend to change the existing practice with
respect to payment of travel expenses and per diem.

   /13/ The Eleventh Circuit has noted that if the Authority's
position prevails, "the Federal Government would be the only federally
regulated employer required to pay the travel and per diem expenses
incurred by union negotiators." Florida National Guard v. FLRA, supra,
slip op. 1885 n,11.

   /14/ Even when a union fulfills its statutory duty to bargain in
good faith (5 U.S.C. (Supp. V) 7114(b)), its willingness to compromise
on difficult issues surely will be less if it has no obligation with
respect to the cost of the negotiations.

   /15/ An agency may be required to monitor travel expenses in
connection with investigations by the General Services Administration.
 See 5 U.S.C. 5707(b).

   /16/ The Authority's Interpretation is inconsistent with 5 U.S.C.
(Supp. V) 7106(a) as well.  In that section, Congress stated that
nothing in Title VII is to affect the authority of an agency "to
determine the mission, budget, organization, number of employees, and
internal security practices of the agency * * * ." 5 U.S.C. (Supp. V)
7106(a)(1).  The Authority's creation of a requirement that agencies
use appropriated funds for travel expenses and per diem of employee
union representatives undermines an agency's control of its budget,
since it forces the agency to make direct adjustments to a particular
component of its budget.  The result of the Authority's order is that
agencies must reallocate existing funds and also increases their
appropriations requests for travel in the future.  Since agency travel
funds are the subject of direct attention by Congress and are closely
controlled by Congress and by agencies themselves (see page 18 note
11, supra), the Authority's ruling here is different from a situation
in which the Authority orders an agency to take action that indirectly
requires expenditure of funds or the payment of money to remedy an
unfair labor practice.  Thus, the Authority's ruling conflicts with
Congress' intent to exclude unions from agency budget decisions.

   /17/ An agency can exercise some control over union travel costs
because Section 7131(a) limits the number of employee union
negotiators for whom official time is authorized to a level equal to
the number of agency negotiators.  But this proviso does not
necessarily allow an agency to determine that particular union travel
is reasonable or necessary.  Furthermore, it would not be in the
interest of effective labor relations for an agency to limit the size
of its own representation solely for the purpose of keeping union
travel costs low during a time of budgetary constraint.

   The Authority has suggested in the courts of appeals that more
recent rulings will reduce problems of union/agency friction caused by
its Interpretation.  Under these rulings, an employee union
representative must be part of the relevant bargaining unit in order
to be on official time, and official time need not be authorized for
negotiation of a local supplement to a national master agreement.  See
Air Force Logistics Command, Wright-Patterson AFB, Ohio and
Wright-Patterson AFB Fire Fighters, 7 F.L.R.A. No. 105 (Jan. 15,
1982).  These rulings may lessen the impact of the Authority's
Interpretation in some cases, but there is no indication that they
would apply to a case like this one or to the others that have been
considered by the courts of appeals.  Moreover, the Authority has held
that, to the extent authorization of official time is not required by
statute, an agency must bargain about granting official time, even to
employees outside the bargaining unit.  See United States Naval Space
Surveillance Systems, and Local 2096, 9 F.L.R.A. No. 30 (June 23,
1982), motion for reconsideration granted (Mar. 17, 1983), petition
for review pending, Nos. 82-1726, 82-1897 (4th Cir.).  The Authority
has further held that agencies must pay travel expenses and per diem
even when official time is negotiated by the parties pursuant to 5
U.S.C. (Supp. V) 7131(d), rather than required under Section 7131(a).
See National Treasury Employees Union and Dep't of the Treasury, U.S.
Customs Service, 9 F.L.R.A. No. 70 (July 21, 1982), petition for
review pending, No. 82-2116 (D.C. Cir.).

   /18/ In Testan two federal employees asserted claims for back pay,
alleging that their positions should have been classified at a higher
grade.  The Court rejected the claims on the ground that the United
States had not waived sovereign immunity with respect to money damages
of the type sought by the employees.  The Court indicated that even if
the Civil Service Commission were to find that the employees'
positions had been misclassified, and thus that they should have
received higher salaries in the past, the employees could not obtain a
monetary award against the federal government in the absence of a
statute waiving sovereign immunity.  424 U.S. at 404-405.

   /19/ We do not contend that the Authority may not order appropriate
monetary relief once it has found that an agency has committed an
unfair labor practice.  See 5 U.S.C. (Supp. V) 5596(b).  However,
there must first be an unfair labor practice to be remedied.  The
Authority may not, as it has done here, identify an unfair labor
practice by stretching the statute to find an implied duty to pay.

   /20/ As noted above, under 5 U.S.C. 5707(a) the Administrator of
General Services is authorized to make rules for the administration of
5 U.S.C. (& Supp. V) 5701-5709.

   /21/ It would be incongruous for an agency to evaluate an
employee's performance as a negotiator in the same manner as it would
evaluate his performance while he is conducting "official business" on
behalf of the agency.

   /22/ The Comptroller General subsequently modified this ruling (see
page 6, supra), but only for special circumstances in which the agency
concluded that travel by employee union representatives was primarily
in the interest of the United States (e.g., when an employee union
representative traveled to a particular meeting location so that
several agency representatives would not have to travel).

   /23/ There are other "public interest" activities for which federal
employees may be excused from their regular duties and receive their
salaries without being charged with annual leave, but for which they
do not receive travel expenses and a per diem allowance.  Such
activities include voting, donating blood, and participating in
certain military funerals.  See Civil Service Comm'n, Federal
Personnel Manual, FPM Supp. 990-2, bk. 630, subchap. S11 (May 23, 1968
rev'd July 1969).  Thus, there is no inevitable link between paid time
during absence from work in connection with public interest activities
and reimbursement for travel expenses and per diem.

   The FLRA's General Counsel apparently has concluded that a grant of
official time does not lead automatically to payment of travel
expenses and per diem.  In United States Consumer Product Safety
Commission, New York, Case No. 2-CA-612, an unfair labor practice
charge filed with the Authority, six employees had been granted
official time pursuant to a collective bargaining agreement in order
to participate in an arbitration hearing.  The agency refused the
employees' request for reimbursement of travel expenses and per diem.
The Authority's Office of General Counsel advised the regional office
that the charge filed by the union based on the agency's refusal to
reimburse should be dismissed.  See Federal Labor Relations Authority,
Report on Case Handling Developments of the Office of the General
Counsel, Jan. 1, 1981, through Mar. 31, 1981, at 23-24.

   /24/ Statements by Representative Clay concerning the meaning of
Title VII should be read with some caution.  Representative Clay
strongly supported a bill that was considerably more union-oriented
than the legislation that eventually was enacted;  he supported the
final version of the legislation with reluctance.  See, e.g., 124
Cong. Rec. 29182 (1978) (statement of Rep. Udall);  124 Cong. Rec.
29186 (1978) (statement of Rep. Clay);  Legis. Hist. 923, 930-931.
This Court has declined to give weight to the views of those who
sponsor legislation significantly different from that eventually
enacted.  See Hardin v. Kentucky Utilities Co., 390 U.S. 1, 11 (1968).

   /25/ The Authority also found support for its Interpretation in the
fact that Congress rejected a Senate version of the federal labor
relations legislation that would have carried forward the official
time policies of Exec. Order No. 11491 (Pet. App. 42a n.6).  But
neither the House bill nor the Senate bill mentioned travel expenses
or per diem;  nor did the committee reports accompanying the bills
refer to the subject.  The conference report did not explain the
substitution of the House version of the official time provision for
the Senate version, nor did it mention travel expenses or per diem.
See H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. (1978).  Thus, the
rejection of the Senate version does not suggest any change in the
existing policy with respect to travel expenses and per diem.  See
United States Dep't of Agriculture v. FLRA, supra, 691 F.2d at
1248-1249.

   The Authority further found it significant that Title VII expresses
the purpose of encouraging collective bargaining, while Exec. Order
No. 11491 on its face did not.  But it is clear that encouragement of
collective bargaining was an underlying purpose of the executive order
program.  See, e,g., Section 11(a) of Exec. Order No. 11491, 3 C.F.R.
868 (1966-1970 Compilation) (Legis. Hist. 1250) (agencies and labor
organizations "shall meet at reasonable times and confer in good faith
with respect to personnel policies and practices and matters affecting
working conditions"), as well as the preamble to that Executive Order,
3 C.F.R. 861 (1966-1970 Compilation) (Legis. Hist. 1244) (stating that
efficient administration of the government is benefited by providing
employees an opportunity to participate in formulation and
implementation of personnel policies and practices and that such
participation should be improved through the maintenance of
constructive and cooperative relationships between labor organizations
and management officials).  The restatement of these principles in
different language in Title VII does not suggest anything about
whether the union or the federal government is to pay travel expenses
and per diem incurred by employee union representatives.