ORAL ARGUMENT NOT YET SCHEDULED

Nos. 20-1396 (lead), 20-1397, 20-1404

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFLCIO, et al.,

Petitioners,

v.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent.

______________________________

ON PETITION FOR REVIEW OF AN ORDER OF THE 

FEDERAL LABOR RELATIONS AUTHORITY

______________________________

BRIEF FOR RESPONDENT 

FEDERAL LABOR RELATIONS AUTHORITY

______________________________

NOAH PETERS

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

SARAH C. BLACKADAR

Attorney

Federal Labor

Relations Authority

1400 K Street, N.W.

Washington, D.C. 20424

(202) 218-7908

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CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES

A. Parties

These consolidated Petitions for Review arise from a joint request 

by the U.S. Department of Education and U.S. Department of 

Agriculture (the “Agencies”) pursuant to 5 C.F.R. § 2427.2(a) for a 

general statement of policy or guidance from the Federal Labor 

Relations Authority (the “Authority” or “FLRA”). In response, the 

Authority issued its decision in U.S. Department of Education and U.S. 

Department of Agriculture, 71 FLRA 968 (2020) (Member DuBester 

dissenting). The American Federation of Government Employees, 

National Treasury Employees Union, and American Federation of 

State, County and Municipal Employees (collectively, the “Unions”), 

who were not parties below, have filed these Petitions for Review of that 

decision. In this Court proceeding, the Unions are the petitioners and 

the Authority is the respondent.

B. Ruling Under Review

The Unions seek review of the Authority’s decision in U.S. 

Department of Education and U.S. Department of Agriculture, 71 FLRA 

968 (2020) (Member DuBester dissenting).

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C. Related Cases

This case was not previously before this Court or any other court, 

nor is the Authority aware of any related cases currently pending before 

this Court or any other court.

/s/ Noah Peters

Noah Peters

Solicitor

Federal Labor Relations Authority

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TABLE OF CONTENTS

CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES.......i

TABLE OF CONTENTS .......................................................................... iii

TABLE OF AUTHORITIES.......................................................................v

GLOSSARY..............................................................................................xiii

STATEMENT OF JURISDICTION...........................................................1

STATEMENT OF THE ISSUES PRESENTED .......................................3

RELEVANT STATUTORY PROVISIONS................................................4

STATEMENT OF THE CASE ...................................................................4

STATEMENT OF THE FACTS .................................................................8

I. Congress Closely Patterns the Statute’s Definition of the 

Duty to Bargain After Analogous Provisions of the NLRA.............8

II. In Addition, Congress Defines the Duty to Bargain Under 

the Statute in Terms Virtually Identical to EO 11491..................11

III. Like the NLRB and the Assistant Secretary for LaborManagement Relations, the Authority Initially Applies a 

“Substantial Impact” Standard in Determining What 

Changes Require Bargaining..........................................................12

IV. Then, Without Explanation, the Authority Switches to the 

“More Than De Minimis” Standard, Which Yields Wildly 

Inconsistent Results ........................................................................14

V. The Authority Restores the “Substantial Impact” Standard ........17

SUMMARY OF ARGUMENT..................................................................20

STANDARD OF REVIEW........................................................................26

ARGUMENT.............................................................................................29

I. The Policy Statement Satisfies Chevron Step One........................29

A. Congress Deliberately Framed the Statute’s Bargaining 

Obligation Using Language That Had Consistently Been 

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Interpreted as Incorporating a Threshold “Substantial Impact” 

Requirement....................................................................................30

B. The Unions’ “Plain Language” Argument Was Effectively 

Rejected by AALJ and Is Not Supported by 

Dictionary Definitions.....................................................................40

C. The Unions’ “Plain Text” Argument Is Also Inconsistent with 

Environmental Defense Fund .........................................................44

D. The Policy Statement Is Consistent with the 

Statute’s Purpose ............................................................................46

II. The Policy Statement Satisfies Chevron Step Two........................50

A. The Authority Correctly Noted That It Had Never Given a 

Reasoned Explanation for Rejecting the “Substantial Impact” 

Test...................................................................................................51

B. The Policy Statement Is Consistent with AALJ and AFGE v. 

FLRA................................................................................................54

C. The Authority Reasonably Relied Upon Relevant NLRB 

Precedent .........................................................................................60

D. The Court Should Defer to the Authority’s Well-Supported 

Finding That the “More Than De Minimis” Test Yielded 

Inconsistent Results ........................................................................61

CONCLUSION .........................................................................................64

FED. R. APP. P. RULE 32(A) CERTIFICATION ...................................66

CERTIFICATE OF SERVICE..................................................................66

STATUTORY ADDENDUM

ADDENDUM OF ADMINISTRATIVE PRECEDENT UNDER 

EXECUTIVE ORDER 11491

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v

TABLE OF AUTHORITIES

CASES PAGES

Am Fed’n of Gov’t Emps., AFL-CIO v. FLRA,

446 F.3d 162 (D.C. Cir. 2006)....................................................24, 58, 59

Am. Fed’n of Gov’t Emps. Local 1940, 

No. 71A-11, 1 FLRC 101, 102 (Jul. 9, 1971) .........................................37

Am. Fed’n of Gov’t Emps., Local 2578, 

No. 965, 8 A/SLMR 61, 63 (Jan. 11, 1978)............................................37

Am. Fed’n of Gov’t Emps., Nat'l Council of HUD Locals 222,

54 FLRA 1267 (1998) .............................................................................39

Am. Fed’n Gov’t Emps., AFL-CIO v. Chao,

409 F.3d 377 (D.C. Cir. 2005)................................................................27

Am. Fed’n of Gov’t Employees, Local 32, AFL-CIO v. FLRA,

853 F.2d 986 (D.C. Cir. 1988)..............................8, 20, 25, 32, 39, 60, 61

Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA,

750 F.2d 143 (D.C. Cir. 1984)..............................................................2, 3

Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA,

778 F.2d 850 (D.C. Cir. 1985)....................................................23, 30, 47

Army and Air Force Exchange Serv. Keesler Consolidated Exchange, 

No. 144, 2 A/SLMR 170, 175 (Mar. 28, 1972) .......................................37

Ass’n of Admin. Law Judges v. FLRA,

397 F.3d 957 (D.C. Cir 2005).....................................................................

............5, 11, 21, 22, 29, 30, 35, 40, 41, 42, 44, 47, 49, 54, 55, 56, 57, 58

Ass’n of Civilian Technicians., Mont. Air Chapter No. 29 v. FLRA,

22 F.3d 1150 (D.C. Cir. 1994)................................................................26

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vi

Ass’n of Civilian Technicians v. FLRA,

353 F.3d 46 (D.C. Cir. 2004)..................................................................64

Bennett v. Spear,

520 U.S. 154 (1997)..................................................................................2

Betra Mfg. Co.,

233 NLRB 1126 (1977).......................................................................9, 33

BNSF Ry. Co. v. Surface Transp. Bd.,

526 F.3d 770 (D.C. Cir. 2008)................................................................63

Bragdon v. Abbott,

524 U.S. 624 (1998)................................................................................31

Bureau of Alcohol, Tobacco & Firearms v. FLRA,

464 U.S. 89 (1983)..................................................................................26

Call, Burnup, & Sims, Inc.,

159 NLRB 1661 (1966).......................................................................9, 33

Cellco P’ship v. Fed. Com. Comm’n,

357 F.3d 88 (D.C. Cir. 2004)..................................................................28

Chamber of Com. v. Fed. Election Comm’n,

76 F.3d 1234 (D.C. Cir. 1996)................................................................28

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984)..............................................................26, 27, 28, 29

Dep’t of Def. v. FLRA,

659 F.2d 1140 (D.C. Cir. 1981)........................................................47, 48

Dep’t of Def., Air Nat’l Guard, Tex. Air Nat’l Guard, Camp Mabry, 

Austin, Tex., 

No. 738, 6 A/SLMR 591, 592 (Nov. 4, 1976)....................................13, 38

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Dep’t of Health & Hum. Servs. Soc. Sec. Admin.,

24 FLRA 403 (1986) .............................................................24, 52, 53, 54

Dep't of Health & Human Servs., Soc. Sec. Admin. Chicago Region,

15 FLRA 922 (1984) ...............................................................................14

Dep't of Health & Hum. Serv., Soc. Sec. Admin. Region V, Chi., Ill.,

19 FLRA 827 (1985) .............................................3, 14, 15, 16, 51, 52, 54

Dep't of Hous. & Urb. Dev., Columbia Area Off., Columbia, S.C.,

20 FLRA 233 (1985) ...............................................................................17

Environmental Defense Fund, Inc. v. EPA,

82 F.3d 451 (D.C. Cir. 1996)......................................................44, 45, 46

Fed. Aviation Admin.,

55 FLRA 254 (1999) .................................................11, 21, 36, 37, 38, 40

Flambeau Airmold Corp,

334 NLRB 165 (2001).............................................................................34

FLRA v. Soc. Sec. Admin.,

846 F.2d 1475 (D.C. Cir. 1988)........................................................10, 33

Fort Stewart Sch. v. FLRA,

495 U.S. 641 (1990)................................................................................10

Gordon v. U.S. Capitol Police,

778 F.3d 158 (D.C. Cir. 2015)................................................................32

Gen. Serv. Admin., Region 9, S.F., Cal.,

52 FLRA 1107 (1997) .............................................................................16

Library of Cong. v. FLRA,

699 F.2d 1280 (D.C. Cir. 1983)......................4, 26, 27, 39, 48, 49, 50, 60

Local 32, Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA,

774 F.2d 498 (D.C. Cir. 1985)..........................................................28, 60

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Local 1106, Nat’l Fed’n of Fed. Emps. v. Laird,

318 F. Supp. 153 (D.D.C. 1970).............................................................37

Lorillard v. Pons,

434 U.S. 575 (1978)................................................................................31

Loving v. IRS,

742 F.3d 1013 (D.C. Cir. 2014)..............................................................27

Millard Processing Serv. Inc.,

310 NLRB 421 (1993).............................................................................34

Murphy Diesel Co.,

184 NLRB 757 (1970).............................................................................34

Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs.,

545 U.S. 967 (2005)..............................................................24, 55, 58, 59

Nat’l Treasury Emps. Union v. FLRA,

774 F.2d 1181 (D.C. Cir. 1985)........................................................39, 40

Nat’l Treasury Emps. Union v. FLRA,

754 F.3d 1031 (D.C. Cir. 2014)..............................................................27

NLRB v. Borg-Warner Corp.,

343 U.S. 342 (1958)..................................................................................9

NLRB v. Irvington Motors, Inc.,

343 F.2d 759 (3d Cir. 1965) .....................................................................9

NLRB v. Katz,

369 U.S. 736 (1962)................................................................................34

Northcross v. Bd. of Ed. of Memphis City Sch.,

412 U.S. 427 (1973)................................................................................31

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Northside Ctr. for Child Dev.,

310 NLRB 105 (1993).............................................................................43

Nat’l Treasury Emps. Union, Chapter 26,

66 FLRA 650 (2012) ...............................................................................16

Off. of Program Operations, Field Operations, Soc. Sec. Admin., S.F.

Region,

5 FLRA 333 (1981) ...........................................................................13, 14

Peerless Food Prod., Inc.,

236 NLRB 161 (1978).................................................................12, 21, 34

Rust Craft Broad. of N.Y., Inc.,

225 NLRB 327 (1976).......................................................................12, 34

Soc. Sec. Admin., Off. of Hearings & Appeals, Charleston, S.C.,

59 FLRA 646 (2004) .................................................................................5

Shays v. Fed. Election Comm’n,

414 F.3d 76 (D.C. Cir. 2005)..................................................................28

Soc. Sec. Admin., Bureau of Hearings & Appeals,

2 FLRA 237 (1979) ...........................................................................21, 38

Taino Paper Co.,

290 NLRB 975 (1988).............................................................................34

U.S. Dep't of Educ. and U.S. Dep't of Agric.,

71 FLRA 968 (2020) .............................................................................2, 3

U.S. Dep’t of Health & Hum. Serv., Soc. Sec. Admin., Balt., Md.,

36 FLRA 655 (1990) ...............................................................................16

U.S. Dep't of Homeland Sec. U.S. Customs & Border Prot. El Paso, Tex.,

72 FLRA 7 (2021) .....................................................................................3

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U.S. Dep’t of Homeland Sec., Border & Transp. Sec. Directorate, U.S. 

Customs & Border Patrol, Tucson Sector Tucson, Ariz.,

60 FLRA 169 (2004) .................................................................................4

U.S. Dep't of Labor,

70 FLRA 27 (2016) .................................................................................17

U.S. Dep’t of Navy, Naval Aviation Depot, Cherry Point, N. C. v. FLRA,

952 F.2d 1434 (D.C. Cir. 1992)..............................................................60

U.S. Dep’t of the Air Force, 355th MSG/CC, Davis-Monthan Air Force 

Base, Ariz.,

64 FLRA 85 (2009) .................................................................................17

U.S. Dep’t of the Air Force, 913th Air Wing, Willow Grove Air Reserve 

Station, Willow Grove, Pa.,

57 FLRA 852 (2002) ...............................................................................17

U.S. Dep’t of the Air Force, Air Force Materiel Command, Space & 

Missile Sys. Ctr., Detachment 12, Kirtland Air Force Base, N.M.,

64 FLRA 166 (2009) ...............................................................................16

U.S. Dep’t of Treasury, I.R.S. v. FLRA,

996 F.2d 1246 (D.C. Cir. 1993)..............................................................60

U.S. Dep’t of Veterans Affairs Med. Ctr. Sheridan, Wyo.,

59 FLRA 93 (2003) ...................................................................................4

U.S. Gov’t Printing Off.,

13 FLRA 203 (1983) ...............................................................................14

United Techs. Corp.,

278 NLRB 306 (1986).............................................................................34

Wis. Pub. Power, Inc. v. Fed. Energy Regul. Comm’n,

493 F.3d 239 (D.C.Cir.2007)..................................................................63

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YP Adver. & Publ’g LLC,

366 NLRB No. 89 (2018)........................................................................34

STATUTES

5 U.S.C. § 5332 .........................................................................................10

5 U.S.C. § 7101(b).......................................................15, 21, 36, 41, 46, 49

5 U.S.C. § 7102(2).....................................................3, 8, 10, 20, 32, 35, 49

5 U.S.C. § 7103(a)...................3, 5, 9, 10, 13, 20, 33, 34, 35, 36, 37, 46, 49

5 U.S.C. § 7105(a).............................................................................1, 2, 26

5 U.S.C. § 7106(b)...............................................................5, 10, 15, 35, 49

5 U.S.C. § 7114(b).....................................................................9, 11, 33, 36

5 U.S.C. § 7123(a).......................................................................................2

5 U.S.C. § 7135(b).........................................................................38, 40, 48

29 U.S.C. §158(d)............................................................3, 9, 10, 20, 33, 34

REGULATIONS

5 C.F.R. § 2427.2........................................................................................1

5 C.F.R. § 2427.4........................................................................................2

5 C.F.R. § 2427.5........................................................................................1

OTHER AUTHORITIES

Executive Order 11491,

34 Fed. Reg. 17605 (Oct. 29, 1969)...6, 11, 12, 13, 18, 20, 21, 23, 30, 36, 

37, 38, 39

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124 Cong. Rec. H9647 (daily ed. Sept. 13, 1978).....................................48

Appreciable, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/appreciable .................57

De Minimis, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/de%20minimis......22, 41

Significant, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/significant...................44

Substance, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/substance..............43, 57

Substantial, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/substantial............43, 57

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GLOSSARY

Agencies U.S. Department of Education and U.S. 

Department of Agriculture

ALJ Administrative Law Judge

Authority The Federal Labor Relations Authority

Br. Petitioners’ opening brief 

EO 11491 Executive Order 11491, 34 Fed. Reg. 17605 (Oct. 

29, 1969)

FLRA The Federal Labor Relations Authority

JA The Joint Appendix 

NLRA The National Labor Relations Act

NLRB The National Labor Relations Board

Policy Statement U.S. Department of Education and U.S. 

Department of Agriculture, 71 FLRA 968 (2020) 

(Member DuBester dissenting).

Request The Agencies’ Request for a General Statement of 

Policy or Guidance 

Statute The Federal Service Labor-Management 

Relations Statute, 5 U.S.C. §§ 7101-7135 (2018)

Unions Petitioners, American Federation of Government 

Employees, National Treasury Employees Union,

and American Federation of State, County and 

Municipal Employees

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STATEMENT OF JURISDICTION

In the Federal Service Labor-Management Relations Statute, 5 

U.S.C. §§ 7101–7135 (2018) (the “Statute”), Congress charged the 

Authority with not only adjudicating disputes, but also “provid[ing] 

leadership in establishing policies and guidance” under the Statute. 5 

U.S.C. § 7105(a)(1). Part 2427 of the Authority’s regulations 

implements Congress’s command by setting forth procedures by which 

parties may request general statements of policy or guidance. Those 

regulations allow the head of any federal agency, union, or lawful 

association to “ask the Authority for” a policy statement. 5 C.F.R. 

§ 2427.2(a). 

In assessing such requests, the Authority considers several 

factors, including “whether an Authority statement would prevent the 

proliferation of cases involving the same or similar question.” id. 

§ 2427.5(b), “[w]hether the resolution of the question presented would 

have general applicability under” the Statute, id. § 2427.5(c), and 

whether issuing a policy statement would promote the purposes of the 

Statute, id. § 2427.5(f). Before issuing a policy statement, the Authority 

will, “as it deems appropriate,” give “interested parties” an opportunity 

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to comment. Id. § 2427.4. The Authority thus had subject matter 

jurisdiction to issue U.S. Department of Education and U.S. Department 

of Agriculture, 71 FLRA 968 (2020) (Member DuBester dissenting) (the

“Policy Statement”) under 5 U.S.C. § 7105(a)(1) and part 2427 of the 

Authority’s regulations.

The Policy Statement is a “final order of the Authority” reviewable 

in circuit court under 5 U.S.C. § 7123(a). See Am. Fed’n of Gov’t Emps., 

AFL-CIO v. FLRA, 750 F.2d 143, 144-145 (D.C. Cir. 1984) (“AFGE 

1984”). The Authority’s Policy Statement “marks the consummation of 

the agency’s decisionmaking process” and “is not of a merely tentative 

or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) 

(internal quotation marks and citation omitted). Further, it is an action 

“by which rights or obligations have been determined, or from which 

legal consequences will flow.” Id. at 178 (internal quotation marks 

omitted). 

As in AFGE 1984, the Policy Statement contains the Authority’s 

“final word on the subject” of whether a substantial impact standard 

should apply in determining whether a management-initiated change 

requires bargaining, and “[n]othing further needs to be done by the 

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FLRA” to implement it. AFGE 1984, 750 F.2d at 144. The Authority 

was clear on this point, as it overruled a previous case (Department of 

Health and Human Services, SSA Region V, Chi., Ill., 19 FLRA 827, 

829-30 (1985) (“SSA Reg. V”) and said that “[t]o the extent Authority 

decisions since SSA Reg. V have applied a different standard or test 

[than ‘substantial impact’], they will no longer be followed.” (JA 18, 20.) 

As in AFGE 1984, the Authority has since applied the Policy Statement 

in subsequent adjudications. See U.S. Dep't of Homeland Sec. U.S. 

Customs & Border Prot. El Paso, Tex., 72 FLRA 7, 11 & n.47 (2021) 

(citing Policy Statement, 71 FLRA at 971); compare AFGE 1984, 750 

F.2d at 145. 

STATEMENT OF THE ISSUES PRESENTED

1. Has Congress spoken directly to the precise question of 

whether agencies must bargain over changes that have no substantial 

impact on employees’ conditions of employment?

2. Given that Congress used similar language in defining the 

collective bargaining obligation under the Statute (see 5 U.S.C. 

§§ 7102(2), 7103(a)(12)) as it used in the National Labor Relations Act 

(“NLRA”) (see 29 U.S.C. §158(d)), and given that both this Court and 

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the Authority have consistently looked to National Labor Relations 

Board (“NLRB”) precedent in determining the scope of bargaining under 

the Statute, see, e.g., Library of Congress v. FLRA, 699 F.2d 1280, 1286 

(D.C. Cir. 1983) (“Library”), was it reasonable for the Authority to apply 

the same “substantial impact” standard that the NLRB has used for 

over 50 years to determine what level of impact a change must have 

before the employer is required to bargain over it?

RELEVANT STATUTORY PROVISIONS

All relevant statutory and regulatory provisions are contained in 

the attached Statutory Addendum. (Add. 1.)

STATEMENT OF THE CASE

By letter dated October 31, 2019, the Agencies jointly asked the 

Authority to issue a general statement of policy or guidance holding 

that, in determining whether a management-initiated change1 requires 

 

1 The “management-initiated” qualifier serves to distinguish cases 

where a change in a condition of employment arises from changes not 

attributable to management, such as workload fluctuations. In such 

cases, no bargaining is required. See, e.g., U.S. Dep’t of Homeland Sec., 

Border & Transp. Sec. Directorate, U.S. Customs & Border Patrol, 

Tucson Sector Tucson, Ariz., 60 FLRA 169, 173 (2004); U.S. Dep’t of

Veterans Affairs Med. Ctr. Sheridan, Wyo., 59 FLRA 93, 94 (2003).

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“impact and implementation” bargaining,2 a substantial impact 

standard should apply. (JA 1.) The Agencies noted that the Statute 

does not specify what level of impact a change must have before 

bargaining is required. (JA 2.) They observed that the Statute, in 

defining the “conditions of employment” over which parties must 

bargain as “policies, practices, and matters . . . affecting working 

conditions,” suggests that the duty to bargain is triggered only where a 

change has an appreciable effect on employees. (Id.) (quoting 5 U.S.C. 

§ 7103(a)(14).) 

Initially, the Authority had interpreted the Statute, and the 

Executive Order which preceded it, as requiring bargaining only where 

a change had a substantial impact on conditions of employment. (JA 3 

 

2 “Impact and implementation bargaining” refers to bargaining under 5 

U.S.C. § 7106(b)(2) & (3) over the procedures management will observe 

in exercising management rights and “appropriate arrangements for 

employees adversely affected by the exercise of any” management right. 

The Authority uses the same standard to determine whether a change 

requires bargaining in the impact-and-implementation context as in 

any other context. (JA 17 (citing Soc. Sec. Admin., Off. of Hearings & 

Appeals, Charleston, S.C., 59 FLRA 646, 653-54 (2004), pet. den. sub 

nom. Ass’n of Admin. Law Judges v. FLRA, 397 F.3d 957 (D.C. Cir 

2005)).) Thus, the Authority did not limit its discussion in the Policy 

Statement to impact-and-implementation bargaining, and the Unions 

do not challenge that aspect of the Policy Statement before this Court. 

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(collecting cases); see also Executive Order 11491, 34 Fed. Reg. 17605 

(Oct. 29, 1969) (“EO 11491”).) But, in the mid-1980s, the Authority 

switched from a substantial impact test to a “more than de minimis”

standard. (JA 3.) The “more than de minimis” standard requires 

bargaining over “any change that causes an impact to a condition of 

employment that is more than trivial, or insignificant.” (JA 2.) 

The inevitable result of such a standard, the Agencies urged, “is 

either the negotiation of every proposed management change that is 

other than insignificant, or litigation over whether the proposed change 

is no more than insignificant.” (Id.) The Agencies observed that the

“more than de minimis” standard “has resulted in vast differences of 

opinion among judges, arbitrators, and the Authority regarding what 

constitutes a de minimis change.” (JA 3.) “This resulting lack of clarity 

has negatively impacted labor-management relations and has increased 

the potential for harmful and duplicative litigation and associated 

costs.” (Id.) The Agencies urged that the Authority return to the 

substantial impact standard, which “would provide a meaningful, 

workable and realistic standard that could significantly reduce 

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ambiguity and thereby prevent, or at least significantly reduce, 

continued litigation.” (JA 5.)

The Authority granted the Agencies’ request and issued a 

thorough and well-reasoned Policy Statement restoring the substantial 

impact test. (JA 17–20.) The Authority noted that at its inception, it 

applied a substantial impact standard in determining whether a 

management-initiated change triggered the duty to bargain. (JA 17.) 

Then, in the mid-1980s, the Authority abandoned the “substantial 

impact” standard in favor of a “more than de minimis” standard. In the 

ensuing years, the “more than de minimis” test yielded inconsistent 

results, making its application unpredictable. (See JA 18 n.14

(describing contradictory holdings applying the “more than de minimis” 

test).) The Authority further observed that it was “incongruous to 

impose a statutory duty to bargain on matters that are barely more 

than trivial” and which have “no substantial impact on conditions of 

employment.” (JA 20.) 

In looking for a “meaningful and determinative” standard, the 

Authority noted that, both before and after the Statute was 

promulgated, the NLRB has required bargaining only when a purported 

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change has a “material or substantial impact” on bargaining-unit 

employees. (JA 19.) And the Authority further found that it had never 

provided any reason for departing from the substantial impact test. (JA 

20.) The Authority thus determined that substantial impact is the 

appropriate test for deciding whether a change to a condition of 

employment is significant enough to trigger a duty to bargain. (Id.)

Shortly after the Authority issued its Policy Statement, the 

Unions filed these Petitions for Review. 

STATEMENT OF THE FACTS

I. Congress Closely Patterns the Statute’s Definition of the 

Duty to Bargain After Analogous Provisions of the NLRA

The Statute “was modeled on the [NLRA],” and “its provisions 

were crafted either by analogy or by contrast” to that earlier-enacted 

law. Am. Fed’n of Gov’t Emps., Local 32, AFL-CIO v. FLRA, 853 F.2d 

986, 992 (D.C. Cir. 1988) (“AFGE 1988”) (internal quotation marks 

omitted). In particular, Congress patterned the duty to bargain in the 

Statute on the NLRA’s definition of that same duty. The Statute gives

employees the right “to engage in collective bargaining with respect to 

conditions of employment through representatives chosen by employees 

under this chapter.” 5 U.S.C. § 7102(2). It defines “collective 

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bargaining” as “the performance of the mutual obligation of the 

representative of an agency and the exclusive representative of 

employees . . . 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[.]” Id. § 7103(a)(12); see also 

id. § 7114(b)(2) (“The duty . . . to negotiate in good faith . . . shall 

include the obligation . . . to discuss and negotiate on any condition of 

employment[.]”).

The NLRA similarly defines “to bargain collectively” as “the 

performance of the mutual obligation of the employer and the 

representative of the employees to meet at reasonable times and confer 

in good faith with respect to wages, hours, and other terms and 

conditions of employment.” 29 U.S.C. § 158(d). The NLRB has read the 

word “confer” to require employers to negotiate and bargain over 

conditions of employment, not simply discuss them. NLRB v. BorgWarner Corp., 356 U.S. 342, 349 (1958); NLRB v. Irvington Motors, Inc., 

343 F.2d 759, 760 (3d Cir. 1965); Call, Burnup, & Sims, Inc., 159 NLRB 

1661, 1678 (1966); Betra Mfg. Co., 233 NLRB 1126, 1135 (1977). Thus,

the duty to bargain under the Statute was crafted “by analogy . . . to the 

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NLRA.” FLRA v. Soc. Sec. Admin., 846 F.2d 1475, 1478 (D.C. Cir. 

1988). The basic obligation, in both cases, is “to meet at reasonable 

times” and “consult and bargain” or “confer” “with respect to . . . 

conditions of employment.” 5 U.S.C. § 7103(a)(12); 29 U.S.C. § 158(d).3

Unlike the NLRA, however, the Statute emphasizes that the duty 

to bargain is limited to “conditions of employment affecting such 

employees[.]” 5 U.S.C. § 7103(a)(12) (emphasis added). The Statute 

reinforces that the duty to bargain is premised on a substantial impact 

on employees by defining “conditions of employment” as “personnel 

policies, practices, and matters, whether established by rule, regulation, 

or otherwise, affecting working conditions[.]” Id. § 7103(a)(14) 

(emphasis added). Similarly, § 7106(b)(3) of the Statute requires 

bargaining over “appropriate arrangements for employees adversely 

affected by the exercise” of any management right. Id. § 7106(b)(3) 

(emphasis added). “Congress thus . . . predicated the duty to bargain 

under § 7106(b)(3) and under § 7102(2) upon the same notion, namely 

 

3 “Wages and hours” are excluded from the Statute’s definition of 

“collective bargaining” because “[t]he wages and fringe benefits of the 

overwhelming majority of Executive Branch employees are fixed by law, 

in accordance with the General Schedules of the Civil Service Act.” Fort 

Stewart Sch. v. FLRA, 495 U.S. 641, 649 (1990) (citing 5 U.S.C. § 5332).

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an effect upon employees[.]” Ass’n of Admin. Law Judges v. FLRA, 397 

F.3d 957, 963 (D.C. Cir. 2005) (emphasis in original) (“AALJ”). That is, 

the Statute emphasizes that “some level of impact—that is, effect— is a 

sine qua non of a union’s right to engage in bargaining[.]” Id. (internal 

formatting omitted). 

II. In Addition, Congress Defines the Duty to Bargain Under 

the Statute in Terms Virtually Identical to EO 11491

The Statute also defines the duty to bargain in a manner 

“virtually identical” to EO 11491, which governed federal-sector labor 

relations immediately before the Statute. Fed. Aviation Admin., 55 

FLRA 254, 259 (1999) (“FAA”). Similar to § 7103(a)(12) and § 7114(b)(2) 

of the Statute, § 11(a) of EO 11491, titled “Negotiation of agreements,”

provided that “[a]n agency and a labor organization that has been 

accorded exclusive recognition, through appropriate representatives, 

shall meet at reasonable times and confer in good faith with respect to 

personnel policies and practices and matters affecting working 

conditions[.]” 34 Fed. Reg. at 17610. Similar to § 7103(b)(3) of the 

Statute, § 11(b) of EO 11491 listed several non-negotiable management 

rights, but included an exception allowing negotiation of “appropriate 

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arrangements for employees adversely affected by the impact of 

realignment of work forces or technological change.” Id.

III. Like the NLRB and the Assistant Secretary for LaborManagement Relations, the Authority Initially Applies a 

“Substantial Impact” Standard in Determining What 

Changes Require Bargaining

For well over 50 years, both before and after the Statute was 

enacted, the NLRB has applied a threshold standard in determining 

when an employer-initiated change to conditions of employment 

requires bargaining. Under the NLRB’s precedent, “not every 

unilateral change in” conditions of employment “constitutes a breach of 

the bargaining obligation. The change unilaterally imposed must, 

initially, amount to ‘a material, substantial, and a significant’ one[.]” 

Peerless Food Products, Inc., 236 NLRB 161, 161 (1978) (quoting Rust 

Craft Broad. of N.Y., Inc., 225 NLRB 327, 327 (1976).)

So too with respect to § 11(a) of EO 11491, which required

agencies and unions to “meet at reasonable times and confer in good 

faith with respect to personnel policies and practices and matters 

affecting working conditions[.]” The Statute uses almost identical 

language in obligating agencies and unions “to meet at reasonable times 

and to consult and bargain in a good-faith effort to reach agreement 

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with respect to the conditions of employment affecting such employees,” 

and defining “conditions of employment” as “personnel policies, 

practices, and matters . . . affecting working conditions[.]” 5 U.S.C. 

§ 7103(a)(12), (14). 

The Assistant Secretary for Labor-Management Relations held 

that the bargaining obligation created by § 11(a) of EO 11491 was “not 

intended to embrace every issue which is of interest to agencies and 

exclusive representatives and which indirectly may affect employees.” 

Dep’t of Def., Air Nat’l Guard, Tex. Air Nat’l Guard, Camp Mabry, 

Austin, Tex., No. 738, 6 A/SLMR 591, 592 (Nov. 4, 1976) (“Camp 

Mabry”). “Rather, Section 11(a) encompasses those matters which 

materially affect, and have a substantial impact on, personnel policies, 

practices, and general working conditions.” Id. 

The Authority initially interpreted the Statute to require a 

“substantial impact” standard. In Office of Program Operations, Field 

Operations, Social Security Administration, San Francisco Region, 5 

FLRA 333, 336–37 (1981), the Authority adopted the findings and 

conclusions of an Administrative Law Judge (“ALJ”), including the 

ALJ’s application of the substantial impact standard from Camp Mabry. 

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In so doing, the Authority approved the ALJ’s holding that “there 

should be no doubt that management should not be compelled to 

negotiate where the exercise of its rights results in an insubstantial 

impact on bargaining unit employees.” Off. of Program Operations, Soc. 

Sec. Admin., 5 FLRA at 337.

IV. Then, Without Explanation, the Authority Switches to the 

“More Than De Minimis” Standard, Which Yields Wildly 

Inconsistent Results

In the mid-1980s, however, without explanation, the Authority 

modified the “substantial impact” standard first to an “impact” 

standard, U.S. Government Printing Office, 13 FLRA 203, 204–05 

(1983), and then a “more than de minimis” standard, Department of 

Health & Human Services, Social Security Administration Chicago 

Region, 15 FLRA 922, 924 (1984). The Authority first attempted to give 

content to the “more than de minimis” standard in SSA Reg. V, issued 

when the Authority had only two members. Those two members wrote 

separate opinions that expressed differing views on what the “more 

than de minimis” standard was supposed to mean. (JA 18.) 

Acting Chairman Frazier issued an opinion listing five factors (the 

nature of the change, its duration and frequency, the number of 

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employees affected, the size of the bargaining unit, and whether the 

parties had bargained over similar changes in the past) that should be 

considered in determining whether a change was “more than de 

minimis.” SSA Reg. V, 19 FLRA at 830 (opinion of Acting Chairman 

Frazier). All five could equally be applied to measure whether the 

change had a substantial impact, although he avoided using that 

phrase.

In his opinion, Member McGinnis said that he defined a “de 

minimis change” as “a change which does not have a substantive 

adverse effect upon unit employees.” SSA Reg. V, 19 FLRA at 834

(concurring opinion of Member McGinnis). He emphasized that the 

“more than de minimis” test must take into account “the needs of 

agency management to make changes in employee working conditions 

in order to carry out the day-to-day operations in the Government[.]” 

Id. And, noting that § 7101(b) of the Statute says its provisions “should 

be interpreted in a manner consistent with the requirement of an 

effective and efficient Government,” Member McGinnis observed:

It follows that section 7106(b)(2) and (3) must be construed 

so as to permit management to conduct its business 

generally without unreasonable impediments. Such an 

objective cannot be reached if management must be required 

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to bargain over every decision it makes, regardless of the 

impact on unit employees. Decisions are made daily by every 

level of management, and if bargaining were required on 

each and every decision, Government would grind to a halt.

Id.

From this muddled beginning, the “more than de minimis” 

standard yielded wildly inconsistent results. Applying that test, the

Authority held that rearranging the seating location within a single 

office was more than de minimis, but moving an employee to an entirely 

different work location was not more than de minimis. Compare U.S. 

Dep’t of Health & Hum. Serv., Soc. Sec. Admin., Balt., Md., 36 FLRA 

655, 688 (1990), with Gen. Serv. Admin., Region 9, S.F., Cal., 52 FLRA 

1107, 1111-12 (1997). It held that requiring an employee to give up a 

“second” office, while keeping his primary office, was “more than de 

minimis,” but moving an employee permanently to a vacant office was 

not more than de minimis. Compare U.S. Dep’t of the Air Force, Air 

Force Materiel Command, Space & Missile Sys. Ctr., Detachment 12, 

Kirtland Air Force Base, N.M., 64 FLRA 166, 173–74 (2009), with Nat’l 

Treasury Emps. Union, Chapter 26, 66 FLRA 650, 653 (2012). 

Increasing “supervisory” duties for “lead” guards already performing 

supervisory duties was more than de minimis, the Authority 

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determined, but reassigning and giving a new position description and 

responsibilities to an employee was not more than de minimis.

Compare U.S. Dep’t of the Air Force, 913th Air Wing, Willow Grove Air 

Reserve Station, Willow Grove, Pa., 57 FLRA 852, 857 (2002), with U.S. 

Dep’t of Labor, 70 FLRA 27, 30–31 (2016). And the Authority found 

that changes to a single employee’s duties triggered a duty to bargain 

(without considering the size of the bargaining unit), while finding that 

changes to two employees’ duties did not trigger a duty to bargain 

(based in part on the sizes of the affected bargaining units). Compare 

U.S. Dep’t of the Air Force, 355th MSG/CC, Davis-Monthan Air Force 

Base, Ariz., 64 FLRA 85, 89–90 (2009), with Dep’t of Hous. & Urb. Dev., 

Columbia Area Off., Columbia, S.C., 20 FLRA 233, 235–36 (1985).

V. The Authority Restores the “Substantial Impact” Standard

By letter dated October 31, 2019, the Agencies jointly asked the 

Authority to issue a policy statement holding that, in determining 

whether a management-initiated change requires “impact and 

implementation” bargaining under the Statute, a substantial impact 

standard should apply. (JA 1.) The Agencies noted that the Statute is 

not clear what level of impact a change must have on conditions of 

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employment before bargaining is required. (JA 2.) Initially, the 

Agencies noted, the Authority had interpreted the Statute and EO 

11491 as requiring bargaining only where a change had a substantial 

impact on conditions of employment. (JA 3 (collecting cases).) But, in 

the mid-1980s, without explanation, the Authority switched from a 

substantial impact test to a “more than de minimis” standard. (Id.) 

The Agencies observed that the “more than de minimis” standard “has 

resulted in vast differences of opinion among judges, arbitrators, and 

the Authority regarding what constitutes a de minimis change.” (JA 3.) 

They urged the Authority to return to the substantial impact standard.

(JA 5.)

The Authority granted the Agencies’ request and issued a Policy 

Statement restoring the “substantial impact” test and rejecting the 

“more than de minimis” standard. (JA 17–20.) The Authority noted 

that at its inception, it applied a substantial impact test. (JA 17.) 

However, in the mid-1980s, the Authority abandoned the “substantial 

impact” test in favor of a “more than de minimis” standard. In doing so, 

however, the Authority failed to explain why the substantial impact 

standard was inadequate. (JA 17–18).

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In addition, the Authority found that the “more than de minimis” 

test had yielded wildly inconsistent results, making its application

unpredictable. (JA 18 n. 14 (collecting contradictory holdings applying 

the “more than de minimis” test).) Thus, the Authority agreed with the 

Agencies that the “more than de minimis” test had proved unworkable

and had negatively affected federal-sector labor relations. (Id.) 

Moreover, the Authority observed that “[b]y definition, ‘de minimis’ 

signals triviality” and it was “incongruous to impose a statutory duty to 

bargain on matters that are barely more than trivial” and which have 

“no substantial impact on conditions of employment.” (JA 20.) 

In looking for a “meaningful and determinative” standard, the 

Authority noted that, both before and after the Statute’s enactment, the 

NLRB has required bargaining only when a change has a “material or 

substantial impact” on bargaining-unit employees. (JA 19.) Moreover, 

the Authority itself had never provided any reason for departing from 

the “substantial impact” test. (JA 20.) The Authority thus found that 

the substantial-impact test is the appropriate means for determining 

whether a change to a condition of employment is significant enough to 

trigger a duty to bargain. (Id.)

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Shortly after the Authority issued its Policy Statement, the 

Unions filed these Petitions for Review. 

SUMMARY OF ARGUMENT

The Unions contend that the “plain text of the Statute” forecloses 

the use of a substantial impact standard. (Br. 15–19.) But the reverse 

is true: Congress invited use of the substantial impact test by defining 

the duty to bargain under the Statute in terms that were nearly wordfor-word identical to the definition of that duty in the NLRA and EO 

11491, both of which had long been interpreted to require use of a 

substantial impact test. 

This Court has “repeatedly observed that [the Statute] was 

modeled on the [NLRA], and that its provisions were crafted either by 

analogy or by contrast.” AFGE 1988, 853 F.2d at 992 (internal 

quotation marks omitted). Here, Congress patterned the duty to 

bargain in the Statute on the NLRA’s definition of that same duty. 

Compare 5 U.S.C. §§ 7102(2), 7103(a)(12), with 29 U.S.C. §158(d). Both 

before and after the Statute was enacted, the NLRB has applied a 

threshold substantial impact test in determining when an employerinitiated change to conditions of employment requires bargaining. 

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Peerless Food Products, Inc., 236 NLRB at 161. Indeed, the Statute 

indicates even more strongly than the NLRA that a threshold 

substantial impact test should apply. See, e.g., AALJ, 397 F.3d at 963 

(noting that the Statute’s provisions state repeatedly that bargaining is 

predicated upon an “effect” on employees); 5 U.S.C. § 7101(b) (stating 

that the Statute “should be interpreted in a manner consistent with the 

requirement of an effective and efficient Government”).

In addition, the Statute defines the duty to bargain in a manner 

“virtually identical” to EO 11491, which governed federal-sector labor 

relations immediately before the Statute. FAA, 55 FLRA at 259. As 

with the NLRA, the settled administrative interpretation of EO 11491 

was that a management-initiated change must have a substantial 

impact on employees before bargaining was required. Soc. Sec. Admin., 

Bureau of Hearings & Appeals, 2 FLRA 237, 239, 243 (1979).

The Unions contend that the use of a substantial impact test is 

contrary to the Statute’s text because, in their view, the Statute 

requires bargaining over any change that “affects” employees—

regardless of the level of that effect. (Br. 15–19.) But this 

interpretation would equally doom the “more than de minimis” test, 

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because it too requires that only changes that meet a threshold level of 

impact may trigger a bargaining duty. AALJ, 397 F.3d at 961–63

(rejecting a similar “plain text” argument). Seeking to avoid this 

conclusion, the Unions point to dictionary definitions of “substantial” as 

meaning “important, essential” and “significantly great.” (Br. 17.) But 

they fail to cite the dictionary definition of “de minimis,” which is 

“lacking significance or importance: so minor as to merit disregard.” De 

Minimis, Merriam-Webster Online Dictionary, https://www.merriamwebster.com/dictionary/de%20minimis. There is little difference 

between insisting that a change must be “significant” or “important” 

and insisting that it must be “substantial.” And, in its Policy 

Statement, the Authority explained that its “substantial impact” 

standard would serve the same function as the “more than de minimis” 

standard: to “determin[e] whether a change to a condition of 

employment is significant enough to trigger a duty to bargain.” (JA 20; 

see also AALJ, 397 F.3d at 962 (the Statute does not require bargaining 

over “truly insignificant conditions of employment.”).)

The Unions insist that the use of a “substantial impact” standard

is inconsistent with Congress’s intent to promote collective bargaining. 

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(Br. 22–23.) This argument rests on an overly simplistic view of

Congress’s purpose in enacting the Statute, which was to “strike[] a 

balance between the need to strengthen employees’ bargaining rights, 

and the need not to unduly interfere with government operations.” Am. 

Fed’n of Gov’t Emps., AFL-CIO v. FLRA, 778 F.2d 850, 852 (D.C. Cir. 

1985) (“AFGE 1985”). Using the same substantial impact standard that 

prevailed in the private sector under the NLRA and in the federal sector 

under EO 11491 at the time of the Statute’s enactment fits comfortably 

with that purpose.

Moving to Chevron step two, the Unions fail to show that the 

Authority’s Policy Statement is arbitrary or capricious. The Unions 

contend that the Authority “misstated its precedent” in saying that it 

had “never provided any ‘explanation or rationale’ for adoption of the de 

minimis standard.” (Br. 24 (quoting JA 19).) The Unions’ argument for 

why the Authority “misstated its precedent,” however, rests on a 

mischaracterization of what the Authority said. (JA 19 & n. 24.) And 

the Unions’ argument is not even correct on its own terms. The passage 

the Unions emphasize provides no explanation whatsoever for why a 

“more than de minimis” test would better serve “to distinguish between 

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changes which require bargaining and those which do not” than a 

“substantial impact” test. Dep’t of Health & Hum. Servs. Soc. Sec. 

Admin., 24 FLRA 403 (1986) (“HHS, SSA”). 

Next, the Unions contend that the Authority’s Policy Statement is 

contrary to AALJ and AFGE v. FLRA, 446 F.3d 162 (D.C. Cir. 2006) 

(“AFGE 2006”). But “[a] court’s prior judicial construction of a statute 

trumps an agency construction otherwise entitled to Chevron deference

only if the prior court decision holds that its construction follows from 

the unambiguous terms of the statute and thus leaves no room for 

agency discretion.” Nat’l Cable & Telecomm. Ass’n v. Brand X Internet 

Servs., 545 U.S. 967, 982 (2005) (“Brand X”). Here, neither AALJ nor 

AFGE 2006 held that the “more than de minimis” standard “follows 

from the unambiguous terms of the statute and thus leaves no room for 

agency discretion.” Id. 

The Unions make the startling contention that it was 

unreasonable for the Authority to look to NLRB precedent in 

determining the scope of bargaining under the Statute. (Br. 31–33.) 

But this Court has said repeatedly that the Authority acts arbitrarily 

when it ignores NLRB precedent in determining the scope of bargaining 

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under the Statute. See, e.g., AFGE 1988, 853 F.2d at 992. It has

insisted that “when the Authority departs from a familiar principle 

rooted in private sector precedent, it should either identify practical 

distinctions between private and governmental needs that justify the 

departure, or offer some evidence in the language, history, or structure 

of the statute suggesting that Congress intended a different result.” Id. 

The substantial impact test, which the NLRB has applied for over 50 

years to measure the scope of bargaining under the NLRA, certainly 

counts as a “familiar principle rooted in private sector precedent[.]” Id. 

In its Policy Statement, the Authority contrasted the results of 

eight different cases applying the “more than de minimis” standard to 

show that it has yielded unpredictable and unworkable results. (JA 18 

& n. 14.) The Unions contend this was not enough to justify discarding 

the “more than de minimis” standard. (Br. 34–36.) But the Unions do 

not bother discussing any of the cases the Authority cited. (Id.) Nor do 

they make any effort to explain how their results were consistent with 

one another. (Id.) Instead, they urge that “the inherently fact 

dependent nature of the de minimis exception” means that cases 

applying that test will always turn on their particular facts. (Br. 34.) 

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But the Unions’ contention that it can never be known ex ante whether 

a management-initiated change in conditions of employment will be 

considered “de minimis” amply supports the Authority’s decision to 

discard that test. In sum, the Unions offer no justification for 

disturbing the Authority’s predictive judgment that the substantial 

impact test would “draw a line that is meaningful and determinative” 

(JA 19), where the “more than de minimis” test had failed to do so. 

STANDARD OF REVIEW

Congress gave the Authority responsibility for interpreting and 

administering the Statute. See Bureau of Alcohol, Tobacco & Firearms 

v. FLRA, 464 U.S. 89, 97 (1983) (“BATF”); Ass’n of Civilian 

Technicians., Mont. Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1153 

(D.C. Cir. 1994) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 

Inc., 467 U.S. 837, 842–43 (1984)). In particular, “Congress has 

specifically entrusted the Authority with the responsibility to define the 

proper subjects for collective bargaining, drawing upon its expertise 

and understanding of the special needs of public sector labor relations.” 

Library, 699 F.2d at 1289; see also 5 U.S.C. § 7105(a)(2)(E).

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“Because the ‘Congress has clearly delegated to the Authority the 

responsibility in the first instance to construe the [Statute],’” this Court 

“reviews the Authority’s interpretation of the [Statute] under the 

two-step framework announced in Chevron[.]” Nat’l Treasury Emps. 

Union v. FLRA, 754 F.3d 1031, 1041 (D.C. Cir. 2014) (“NTEU 2014”) 

(alteration in original) (quoting Library, 699 F.2d at 1284). At Chevron 

step one, “the Court must determine whether the statute is ambiguous 

with respect ‘to the precise question at issue[.]’” Id. at 1042 (quoting 

Chevron, 467 U.S. at 842-43.) In doing so, the Court applies “traditional 

tools of statutory construction.” NTEU 2014, 754 F.3d at 1042 (internal 

quotation marks omitted). If the statute is silent or ambiguous, the

Court moves to step two. Id. 

At Chevron step two, “‘the question for the [C]ourt is whether the 

agency’s interpretation is based on a permissible construction of the 

statute in light of its language, structure, and purpose.’” Id. (quoting 

Am. Fed’n Gov’t Emps., AFL-CIO v. Chao, 409 F.3d 377, 384 (D.C. Cir. 

2005)). The Court will “defer to an agency’s interpretation of a statute 

so long as it is reasonable.” Id. (citing Chevron, 467 U.S. at 844; Loving 

v. IRS, 742 F.3d 1013, 1016 (D.C. Cir. 2014)). 

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The Chevron step two analysis “overlaps with” the Administrative 

Procedure Act’s arbitrary and capricious standard. Shays v. Fed. 

Election Comm’n, 414 F.3d 76, 96 (D.C. Cir. 2005) (quoting Chamber of 

Com. v. Fed. Election Comm’n, 76 F.3d 1234, 1235 (D.C. Cir. 1996)). 

“Under this highly deferential standard of review, the court presumes 

the validity of agency action and must affirm unless the [Authority] 

failed to consider relevant factors or made a clear error in judgment[.]” 

Cellco P’ship v. Fed. Com. Comm’n, 357 F.3d 88, 93–94 (D.C. Cir. 2004) 

(internal quotation marks and citations omitted).

The Authority, like other agencies, “is free to alter its past rulings 

and practices even in an adjudicatory setting” so long as it provides a 

“reasoned explanation” for doing so. Local 32, Am. Fed’n of Gov’t Emps.

v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985). “[A]n agency changing its 

course must supply a reasoned analysis indicating that prior policies 

and standards are being deliberately changed, not casually ignored[.]” 

Id. (internal quotation marks omitted). The reason for such flexibility is 

that “[a]n initial agency interpretation is not instantly carved in stone. 

On the contrary, the agency . . . must consider varying interpretations 

and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. 

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at 863–64 (emphasis added). Indeed, in Chevron itself, the Supreme 

Court deferred to an agency interpretation that was a recent reversal of 

agency policy. Id. at 857–58. 

ARGUMENT

I. The Policy Statement Satisfies Chevron Step One

The Unions contend that the Authority’s Policy Statement fails at 

Chevron step one because Congress has spoken “to the precise question” 

of the scope of bargaining under the Statute and ruled out a 

“substantial impact” standard. (Br. 14.) That argument is meritless. 

Congress intentionally chose to define the Statute’s bargaining 

obligation in terms that carried a settled administrative interpretation, 

one which held that a management-initiated change must have a 

“substantial impact” on employees before bargaining was required. 

Thus, to the extent Congress precisely spoke to this question, it spoke in 

favor of using the substantial impact test.

In addition, AALJ rejected an argument similar to that made by 

the Unions here: “that, because the Statute enumerates several 

exceptions to the duty to bargain but nowhere mentions a de minimis 

exception, the court should infer that the Congress did not intend that 

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there be a de minimis exception[.]” AALJ, 397 F.3d at 961. AALJ held 

that the use of such a threshold standard did not contravene he

Statute’s text. 397 F.3d at 961-63. And AALJ did not “insist[] . . . that 

the only acceptable way to express that a change lacked the significance 

necessary to trigger an agency’s duty to bargain was to call it ‘de 

minimis.’” (JA 20.) 

Finally, the Unions are incorrect in asserting that the “substantial 

impact” standard is at odds with Congress’s intent to promote collective 

bargaining. (Br. 19–23.) With the Statute, Congress sought to “strike a 

balance between the need to strengthen employees’ bargaining rights, 

and the need not to unduly interfere with government operations.” 

AFGE 1985, 778 F.2d at 852. Using the same threshold “substantial 

impact” standard that applied in the private sector under the NLRA 

and the federal sector under EO 11491 at the time the Statute was 

enacted fits comfortably with these purposes.

A. Congress Deliberately Framed the Statute’s 

Bargaining Obligation Using Language That Had

Consistently Been Interpreted as Incorporating a 

Threshold “Substantial Impact” Requirement

The Unions contend that the “plain text of the Statute” forecloses 

the use of a substantial impact standard. (Br. 15–19.) But the reverse 

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is true: Congress invited use of the substantial impact test by defining 

the duty to bargain under the Statute in terms that were nearly wordfor-word identical to the definition of that duty under the NLRA and EO 

11491, both of which had long been interpreted to require a threshold 

substantial impact standard. To the extent that Congress used 

different text in the Statute than in the NLRA and EO 11491, those 

differences underscore the permissibility of using a substantial impact 

standard. 

“When administrative and judicial interpretations have settled 

the meaning of an existing statutory provision, repetition of the same 

language in a new statute indicates, as a general matter, the intent to 

incorporate its administrative and judicial interpretations as well.” 

Bragdon v. Abbott, 524 U.S. 624, 645 (1998); accord Lorillard v. Pons, 

434 U.S. 575, 580–581 (1978) (when “Congress adopts a new law 

incorporating sections of a prior law, Congress normally can be 

presumed to have had knowledge of the interpretation given to the 

incorporated law” and to have “adopte[d] that interpretation”); 

Northcross v. Bd. of Ed. of Memphis City Sch., 412 U.S. 427, 428 (1973) 

(a substantial similarity between the two provisions is “a strong 

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indication” that the two statutes should be interpreted similarly); 

Gordon v. U.S. Capitol Police, 778 F.3d 158, 164–65 (D.C. Cir. 2015).

This Court has repeatedly emphasized that this principle applies 

to the Statute and the NLRA. In enacting the Statute, “Congress was 

fully aware of the analogy between the [Statute] and the [NLRA][.]” 

AFGE 1988, 853 F.2d at 992. This Court has “repeatedly observed that 

[the Statute] was modeled on the [NLRA], and that its provisions were 

crafted either by analogy or by contrast.” Id. (internal quotation marks 

omitted.) Thus, “when the Authority departs from a familiar principle 

rooted in private sector precedent, it should either identify practical 

distinctions between private and governmental needs that justify the 

departure, or offer some evidence in the language, history, or structure 

of the statute suggesting that Congress intended a different result.” Id.

Here, Congress patterned the duty to bargain in the Statute on 

the definition of that same duty contained in the NLRA. Indeed, the 

two provisions are virtually identical. The Statute gives employees the 

right “to engage in collective bargaining with respect to conditions of 

employment through representatives chosen by employees under this 

chapter.” 5 U.S.C. § 7102(2). It defines “collective bargaining” as “the 

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performance of the mutual obligation of the representative of an agency 

and the exclusive representative of employees . . . 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[.]” Id. § 7103(a)(12); see also id., § 7114(b)(2) (“The duty . . . 

to negotiate in good faith . . . shall include the obligation . . . to discuss 

and negotiate on any condition of employment[.]”).

The NLRA similarly defines “to bargain collectively” as “the 

performance of the mutual obligation of the employer and the 

representative of the employees to meet at reasonable times and confer 

in good faith with respect to wages, hours, and other terms and 

conditions of employment[.]” 29 U.S.C. § 158(d).4 

The duty to bargain under the Statute, then, was crafted “by 

analogy . . . to the NLRA,” not by contrast. Soc. Sec. Admin., 846 F.2d 

at 1478. The basic obligation, in both cases, is “to meet at reasonable 

 

4 As noted supra, the NLRB has consistently read the word “confer” to 

require employers to negotiate and bargain over conditions of 

employment, not simply discuss them. See, e.g., Call, Burnup, & Sims, 

Inc., 159 NLRB at 1678; Betra Mfg. Co., 233 NLRB at 1135. Thus, the 

Unions’ suggestion that the NLRA’s use of the term “confer” instead of 

“bargain” represents a material difference between the two statutes (Br. 

32) is meritless. 

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times” and “consult and bargain” or “confer” “with respect to . . . 

conditions of employment[.]” 5 U.S.C. § 7103(a)(12), 29 U.S.C. § 158(d).

For well over 50 years, both before and after the Statute was 

enacted, the NLRB has applied a threshold standard in determining 

when an employer-initiated change to conditions of employment 

requires bargaining. Under settled NLRB precedent, “not every 

unilateral change in” conditions of employment “constitutes a breach of 

the bargaining obligation. The change unilaterally imposed must, 

initially, amount to ‘a material, substantial, and a significant’ one[.]” 

Peerless Food Products, Inc., 236 NLRB at 161 (quoting Rust Craft 

Broad. of N.Y., Inc., 225 NLRB at 327); accord NLRB v. Katz, 369 U.S. 

736, 746–47 (1962), YP Adver. & Publ’g LLC, 366 NLRB No. 89 (2018); 

Flambeau Airmold Corp, 334 NLRB 165, 166 (2001), Millard Processing 

Serv. Inc., 310 NLRB 421, 425 (1993); Taino Paper Co., 290 NLRB 975, 

978 (1988); United Techs. Corp., 278 NLRB 306, 308 (1986); Murphy 

Diesel Co., 184 NLRB 757, 763 (1970).

Indeed, the Statute indicates even more strongly than the NLRA 

that a threshold “substantial impact” test should apply. Unlike the 

NLRA, the Statute emphasizes that the duty to bargain is limited to 

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“conditions of employment affecting such employees[.]” 5 U.S.C. 

§ 7103(a)(12) (emphasis added). The Statute reinforces that the duty to 

bargain is predicated on a substantial impact on employees by defining 

“conditions of employment” as “personnel policies, practices, and 

matters, whether established by rule, regulation, or otherwise, affecting

working conditions[.]” Id. § 7103(a)(14) (emphasis added). Similarly, 

§ 7106(b)(3) of the Statute requires bargaining over “appropriate 

arrangements for employees adversely affected by the exercise” of any 

management right. Id. § 7106(b)(3) (emphasis added). 

“Congress thus . . . predicated the duty to bargain under 

§ 7106(b)(3) and under § 7102(2) upon the same notion, namely an effect

upon employees[.]” AALJ, 397 F.3d at 963 (emphasis in original). That 

is, the Statute emphasizes that “some level of impact—that is, effect—

is a sine qua non of a union’s right to engage in bargaining[.]” Id. 

(internal formatting omitted). In so doing, the text of the Statute lends 

itself to a “substantial impact” standard more readily than that of the 

NLRA, which does not contain any similar references to “effects” upon 

employees. 

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There is another salient difference between the NLRA and the 

Statute—one that also strongly weighs in favor of applying a threshold 

“substantial impact” test. In the Statute, Congress “took the unusual 

step of prescribing a practical and flexible rule of construction—to wit, 

the Statute ‘should be interpreted in a manner consistent with the 

requirement of an effective and efficient Government’—that clearly 

invites the Authority to exercise its judgment[.]” Id. at 962 (quoting 5 

U.S.C. § 7101(b)). The NLRA does not prescribe any similar rule of 

construction.

In addition, the Statute defines the duty to bargain in a manner 

“virtually identical” to EO 11491, which governed federal-sector labor 

relations immediately before the Statute. FAA, 55 FLRA at 259. 

Similar to § 7103(a)(12) and § 7114(b)(2) of the Statute, § 11(a) of EO 

11491 provided that “[a]n agency and a labor organization that has 

been accorded exclusive recognition, through appropriate 

representatives, shall meet at reasonable times and confer in good faith 

with respect to personnel policies and practices and matters affecting 

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working conditions[.]” 34 Fed. Reg. 17605.5 The Statute uses almost 

identical language in obligating agencies and unions “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 defining “conditions of employment” as “personnel 

policies, practices, and matters . . . affecting working conditions[.]” 5 

U.S.C. §§ 7103(a)(12), (14). See FAA, 55 FLRA at 259 (“the stated duty 

to bargain under the Executive Order and the Statute is virtually 

identical.”) And similar to § 7103(b)(3) of the Statute, § 11(b) of EO 

11491 listed several management rights, but included an exception 

allowing negotiation of “appropriate arrangements for employees 

adversely affected by the impact of realignment of work forces or 

technological change.” 34 Fed. Reg. 17605. 

As with the NLRA, the settled administrative interpretation of EO 

11491 at the time of the Statute’s enactment was that a management-

 

5 The term “confer” in § 11(a) of EO 11941 was interpreted as creating 

an “obligation to bargain.” Am. Fed’n of Gov’t Emps. Local 1940, No. 

71A-11, 1 FLRC 101, 102 (Jul. 9, 1971); see also Local 1106, Nat’l Fed’n 

of Fed. Emps. v. Laird, 318 F. Supp. 153, 155 (D.D.C. 1970); Army and 

Air Force Exchange Serv. Keesler Consolidated Exchange, No. 144, 2 

A/SLMR 170, 175 (Mar. 28, 1972); Am. Fed’n of Gov’t Emps., Local 

2578, No. 965, 8 A/SLMR 61, 63 (Jan. 11, 1978). 

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initiated change must have a substantial impact on employees before 

bargaining was required. In 1976, the Assistant Secretary for LaborManagement Relations held that the bargaining obligation created by 

§ 11(a) of EO 11491 was “not intended to embrace every issue which is 

of interest to agencies and exclusive representatives and which 

indirectly may affect employees.” Camp Mabry, 6 A/SLMR 591, No. 738, 

at 592. “Rather, Section 11(a) encompasses those matters which 

materially affect, and have a substantial impact on, personnel policies, 

practices, and general working conditions.” Id.; see also Soc. Sec. 

Admin., Bureau of Hearings & Appeals, 2 FLRA at 239, 242.

Section 7135(b) of the Statute states that “[p]olicies, regulations, 

and procedures established under and decisions issued under Executive 

Order[] 11491 . . . shall remain in full force and effect . . . unless 

superseded by specific provisions of this chapter or by regulations or 

decisions issued pursuant to this chapter.” 5 U.S.C. § 7135(b). With 

this provision, “Congress indicated that it expected continuity of 

administration from the Executive Order to the Statute[.]” FAA, 55 

FLRA at 259. Thus, where a part of EO 11491 was carried over “in 

virtually unchanged form” in the Statute—as with the duty to bargain 

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in § 11(a)—the Authority is required to “treat the administrative 

precedent with the same deference as it would treat its own prior FLRA 

decisions.” Nat’l Treasury Emps. Union v. FLRA, 774 F.2d 1181, 1192 

(D.C. Cir. 1985) (“NTEU 1985”). Such administrative precedent 

includes decisions of the Federal Labor Relations Council and the 

Assistant Secretary for Labor-Management Relations interpreting EO 

11491. Id. at 1192-93.

In sum, at the time of the Statute’s enactment in 1978, settled 

administrative precedent under both EO 11491 and the NLRA required 

a threshold “substantial impact” standard to be satisfied before a 

management-initiated change gave rise to a duty to bargain. Both the 

Authority and this Court have noted repeatedly that Congress was 

aware of comparable provisions under the Executive Order and the 

NLRA and how they had been interpreted. See AFGE 1988, 853 F.2d at 

992; Library, 699 F.2d at 1287; Am. Fed’n of Gov’t Emps., Nat'l Council 

of HUD Locals 222, 54 FLRA 1267, 1279 (1998). Congress specifically 

directed that the Authority carry over administrative interpretations of 

parts of EO 11491—such as the bargaining obligation in § 11(a)—that 

were incorporated into the Statute “in virtually unchanged form.” 

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NTEU 1985, 774 F.2d at 1192; see also FAA, 55 FLRA at 259 (“the 

stated duty to bargain under the Executive Order and the Statute is 

virtually identical.”); 5 U.S.C. § 7135(b). Thus, Congress did not 

“foreclose” the use of a substantial impact test in the Statute—it 

specifically invited it by using language that had always been 

interpreted as creating such a test.

B. The Unions’ “Plain Language” Argument Was 

Effectively Rejected by AALJ and Is Not Supported by 

Dictionary Definitions 

The Unions contend that the use of a substantial impact test is 

contrary to the Statute’s text because, in their view, the Statute 

requires bargaining over any change that “affects” employees—

regardless of what degree of effect it may have. (Br. 15-19.) But, if 

true, that would mean the “more than de minimis” test is also contrary 

to the Statute. 

Indeed, in AALJ, the Court rejected an argument similar to that

made by the Unions here: “that, because the Statute enumerates 

several exceptions to the duty to bargain but nowhere mentions a de 

minimis exception, the court should infer that the Congress did not 

intend that there be a de minimis exception[.]” AALJ, 397 F.3d at 961. 

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In doing so, AALJ underscored that, under the Statute, “some level of 

impact—that is, effect— is a sine qua non of a union’s right to engage in 

bargaining[.]” Id. at 963 (emphasis added; internal formatting omitted). 

And, AALJ emphasized that, in the Statute, “Congress took the unusual 

step of prescribing a practical and flexible rule of construction—to wit, 

the Statute ‘should be interpreted in a manner consistent with the 

requirement of an effective and efficient Government,’—that clearly 

invites the Authority to exercise its judgment[.]” Id. at 962 (quoting 5 

U.S.C. § 7101(b)). AALJ noted that “[e]ffectiveness and efficiency in 

government can hardly be thought to require bargaining over truly 

insignificant conditions of employment.” Id. And AALJ held that “[i]t 

is, of course, for the Authority, rather than for this court,” to formulate

an appropriate threshold standard. Id. at 963. 

Seeking to avoid this conclusion, the Unions point to dictionary 

definitions of “substantial” as meaning “important, essential” and 

“significantly great.” (Br. 17–18.) But they fail to cite the dictionary 

definition of “de minimis,” which is “lacking significance or importance: 

so minor as to merit disregard.” De Minimis, Merriam-Webster Online 

Dictionary, https://www.merriamUSCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 55 of 116
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webster.com/dictionary/de%20minimis. There is little textual difference 

between insisting that a change must be “significant” or “important” 

and insisting that it must be “substantial.” 

In its Policy Statement, the Authority explained that the

“substantial impact” standard would serve the same function as the 

“more than de minimis” standard: to “determin[e] whether a change to a 

condition of employment is significant enough to trigger a duty to 

bargain.” (JA 20.) AALJ held that the use of such a threshold test was 

consistent with the Statute’s text. AALJ, 397 F.3d at 961-63. 

Moreover, AALJ did not “insist[] . . . that the only acceptable way to 

express that a change lacked the significance necessary to trigger an 

agency’s duty to bargain was to call it ‘de minimis.’” (JA 20.) Indeed, 

AALJ underscored that the Statute does not require “bargaining over 

truly insignificant conditions of employment” and it characterized a de 

minimis change as one that “ha[d] no appreciable effect on working 

conditions.” AALJ, 397 F.3d at 962 (emphases added). And, as the 

Authority noted, “a common synonym for ‘appreciable’ is ‘substantial.’” 

(JA 20.) 

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In addition, the Unions’ argument relies on cherrypicked 

definitions of “substantial.” The top two definitions of “substantial” are 

“consisting or relating to substance” and “not imaginary or illusory.” 

Substantial, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/substantial. The most 

pertinent definition of “substance” is “practical importance: meaning, 

usefulness.” Substance, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/substance. 

It was in this sense that the Authority (and the NLRB) mean 

“substantial”—as a way of forestalling a requirement to bargain over 

“matters . . . of too little importance to merit the law’s notice.” (JA 20.) 

The Authority in its Policy Statement said that it meant the substantial 

impact test to filter out cases where “a change lack[s] the significance 

necessary to trigger an agency’s duty to bargain.” (JA 20 & n.33.) The 

NLRB has similarly characterized the substantial impact test as 

turning on “whether the change is of legitimate concern to the union as 

the representative of employees, such that the union would be entitled 

to bargain about the matter on behalf of the employees.” Northside Ctr. 

for Child Dev., 310 NLRB 105, 105 (1993). The word “significant” is 

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defined similarly to “substantial”: “having meaning” and “having or 

likely to have influence or effect.” Significant, Merriam-Webster Online 

Dictionary, https://www.merriam-webster.com/dictionary/significant. 

Thus, contrary to the Unions’ contention (Br. 17–18), the 

dictionary definitions of “de minimis,” “substantial” and “significant,”

along with NLRB precedent, undermine any notion that using a 

“substantial impact” standard would drastically limit the scope of 

bargaining. Instead, the “substantial impact” test would more 

effectively serve the supposed purpose of the “more than de minimis” 

test—ensuring that parties are not forced to bargain over insignificant 

or unimportant matters. (JA 18-20 & n. 14.)

C. The Unions’ “Plain Text” Argument Is Also 

Inconsistent with Environmental Defense Fund

In addition to being inconsistent with AALJ, the Unions’ plain

text argument is at odds with Environmental Defense Fund, Inc. v. 

EPA, 82 F.3d 451 (D.C. Cir. 1996) (“EDF”). At issue in EDF was a 

statutory provision providing that “[n]o department, agency, or 

instrumentality of the Federal Government shall engage in . . . any 

activity” that does not “conform” to an EPA implementation plan. EDF, 

82 F.3d at 465. According to the plaintiff in EDF, this language showed

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that “Congress intended the general conformity requirement to apply to 

every activity of the federal government, however minor a source of 

emissions it may be.” Id. That argument is similar to that made by the 

Unions here: that the Statute requires bargaining any time a federal 

agency makes a change in conditions of employment that has any effect, 

no matter how slight, on employees. (Br. 19–21.)

This Court, however, rejected the argument. It held that such 

language was not “so rigid” that it must apply to all federal government 

activity, finding that, despite the sweeping language, “nothing in the 

statute [ ] preclude[d]” the EPA from categorically exempting certain 

federal government activities that produced de minimis emissions from 

conforming to the EPA’s implementation plan. EDF, 82 F.3d at 466–67. 

Rather, this Court said that “it seems eminently reasonable for the EPA 

to interpret this provision to refer to ‘any activity’ that is likely to 

interfere with the attainment goals” in the statute rather than any 

activity undertaken by the federal government. Id.

Here, the Statute’s text is far less rigid than the statutory text in 

EDF. Recall that the Statute requires agencies and unions “to meet at 

reasonable times and to consult and bargain in a good-faith effort to 

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reach agreement with respect to the conditions of employment affecting 

such employees,” and defines “conditions of employment” as “personnel 

policies, practices, and matters . . . affecting working conditions[.]” 5 

U.S.C. § 7103(a)(12), (14). That is a far cry from a requirement that “no 

department, agency, or instrumentality of the Federal Government 

covered by the Statute shall make any change in working conditions 

without first bargaining”—and, in EDF, this Court found analogous 

language did not inflexibly require conformity where the federal action 

would not lead to a “regionally significant level of emissions.” EDF, 82 

F.3d at 466. Moreover, the statute in EDF, unlike the Statute here, did 

not contain a provision requiring that its terms “be interpreted in a 

manner consistent with the requirement of an effective and efficient 

Government.” 5 U.S.C. § 7101(b). Thus, the Unions’ “plain text” 

argument is at odds with EDF.

D. The Policy Statement Is Consistent with the Statute’s 

Purpose

The Unions insist that the use of a “substantial impact” standard 

is inconsistent with Congress’s intent to promote collective bargaining. 

(Br. 22–23.) But this wrongly assumes that the purpose of the 

“substantial impact” test is to drastically limit the scope of bargaining, 

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and ignores the reasons the Authority actually gave for requiring that

test: to provide a “meaningful and determinative” standard for 

determining “whether a change is significant enough to warrant 

bargaining.” (JA 18–19 & n.10.) Indeed, the Authority agreed that the 

Statute is meant to encourage collective bargaining, but explained that 

a substantial impact standard would better promote meaningful 

bilateral negotiations than the “more than de minimis” test. (JA 18-20.) 

And this Court has itself found that the Statute’s broad pro-bargaining 

purpose is consistent with the use of a threshold standard to weed out 

matters too insignificant to require bargaining. AALJ, 397 F.3d at 962.

In addition, the Unions’ argument rests on an overly simplistic 

view of Congress’s purpose in enacting the Statute. With the Statute, 

Congress sought to “strike a balance between the need to strengthen 

employees’ bargaining rights, and the need not to unduly interfere with 

government operations.” AFGE 1985, 778 F.2d at 852. It was meant to 

“represent a fair package of balanced authority for management, 

balanced with a fair protection for at least the existing rights the 

employees have.” Dep’t of Def. v. FLRA, 659 F.2d 1140, 1145 (D.C. Cir. 

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1981) (quoting 124 Cong. Rec. H9647 (daily ed. Sept. 13, 1978) 

(statement of Rep. Ford)). 

The substantial impact test is also meant to strike a balance 

between the right of employees to bargain and the public interest in 

government efficiency, thus furthering the Statute’s most basic 

purposes. Indeed, Congress must have envisioned that the same 

threshold “substantial impact” standard that applied in the private 

sector under the NLRA and the federal government under EO 11491 

would also apply under the Statute, given that 1) Congress closely 

patterned the Statute’s duty to bargain after the definition of that duty 

in the NLRA and EO 11491 and 2) expressly required that prior 

administrative interpretations of EO 11491 carry over where it used 

similar language in the Statute. See 5 U.S.C. § 7135(b).

Library only strengthens this conclusion. Library said that the 

Statute “may be envisioned as imposing a broadly defined duty to 

bargain over conditions of employment that is subject only to the 

express statutory exceptions.” Library, 699 F.2d at 1285. Citing this 

language, the Unions urge that the Authority has improperly created a 

non-express statutory exemption with the “substantial impact” test. 

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(Br. 19–20.) But a similar argument was rejected by AALJ, which 

noted that the “more than de minimis” test was not “a new management 

right” but rather an interpretation of the statutory phrase “affecting 

working conditions” and a way of “implementing the legislative design.” 

AALJ, 397 F.3d at 961–62 (quoting EDF, 82 F.3d at 466); see also 5 

U.S.C. § 7103(a)(14). 

So too, the “substantial impact” test, which serves the same 

function as the “more than de minimis” test (JA 17–20), is faithful to 

the Statute’s text and purpose. As AALJ noted, in “predicat[ing] the 

duty to bargain under § 7106(b)(3) and under § 7102(2) upon the same 

notion, namely an effect upon employees,” Congress emphasized that 

“some level of impact—that is, effect— is a sine qua non of a union’s 

right to engage in bargaining.” AALJ, 397 F.3d at 963 (emphasis in 

original). And in “prescribing a practical and flexible rule of 

construction—to wit, the Statute ‘should be interpreted in a manner 

consistent with the requirement of an effective and efficient 

Government,’” Congress “clearly invite[d] the Authority to exercise its 

judgment” regarding the appropriate threshold standard before 

bargaining is required. Id. at 962 (quoting 5 U.S.C. § 7101(b)). Library, 

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indeed, emphasized the same point: “Congress has specifically 

entrusted the Authority with the responsibility to define the proper 

subjects for collective bargaining, drawing upon its expertise and 

understanding of the special needs of public sector labor relations.” 

Library, 699 F.2d at 1289.

But even more fundamentally, Library undermines the Unions’ 

argument by underscoring that “the structure, role, and functions of the 

Authority were closely patterned after those of the NLRB,” and 

“relevant precedent developed under the NLRA is therefore due serious 

consideration.” Id. at 1287. Indeed, in Library itself, the Court looked

to NLRA precedent in determining the scope of “conditions of 

employment” subject to bargaining under the Statute. Id. at 1286. 

Here, the Authority similarly determined that looking to NLRA 

precedent was appropriate in measuring the scope of “conditions of 

employment” subject to bargaining under the Statute. (JA 19 & nn.28–

30.) In so doing, it was faithful to Library.

II. The Policy Statement Satisfies Chevron Step Two

Moving to Chevron step two, the Unions fail to show that the 

Authority’s Policy Statement is arbitrary or capricious. The Authority 

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correctly noted that it had never explained why the “substantial 

impact” test was incorrect or flawed. (JA 19 & n.24.) Its Policy 

Statement was consistent with AALJ and AFGE 2006. The Authority’s

decision to look to NLRB precedent in measuring the scope of 

bargaining under the Statute was plainly reasonable—indeed, this 

Court has repeatedly held that it is arbitrary and capricious for the 

Authority not to look to such precedent. And the Authority properly 

found that the “more than de minimis” standard yielded unpredictable

results, and that the “substantial impact” standard would “draw a line 

that is meaningful and determinative.” (JA 19.) The Unions make no 

serious effort to challenge the Authority’s conclusions on those points.

A. The Authority Correctly Noted That It Had Never 

Given a Reasoned Explanation for Rejecting the 

“Substantial Impact” Test

The Unions contend that the Authority “misstated its precedent” 

in saying that it had “never provided any ‘explanation or rationale’ for 

adoption of the de minimis standard.” (Br. 24 (quoting JA 19).) But 

what the Authority said was entirely accurate: “[n]either SSA Reg. V

nor Department of HHS, SSA gave any explanation or rationale to 

support the change” from a “substantial impact” standard to a “more 

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than de minimis” standard. (JA 19 (citing SSA Reg. V, 19 FLRA 827 

(1985) and HHS, SSA., 24 FLRA 403 (1986)).) The Authority further 

explained that, in rejecting the substantial impact standard, it had “not 

provide[d] any rationale as to why the substantial impact standard was 

incorrect.” (Id. n.24 (emphasis added).)

The Unions’ argument for why the Authority “misstated its 

precedent,” then, rests entirely on mischaracterizing what the 

Authority said—even in the face of the Authority’s own clarification. 

The Unions do not contest that SSA Reg. V and HHS, SSA failed to 

explain why the substantial impact standard was incorrect or why a 

change from that standard was required—and that was all that the 

Authority said.

But the Unions’ argument is not even correct on its own terms. 

The passage the Unions cite appears in a section of HHS, SSA entitled 

“The use of a standard to identify changes which require bargaining 

and those which do not.” HHS, SSA, 24 FLRA at 406. That section

explained that “[t]he use of a standard to distinguish between changes 

which require bargaining and those which do not is fully supported by 

the Statute and its purposes and policies.” Id. HHS, SSA continued:

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[T]he Authority must take care that its adjudicative 

processes not be unnecessarily burdened with cases that do 

not serve to bring meaning and purpose to the Federal labormanagement relations program. While we seek to ensure 

that the rights of agencies, unions, and employees under the 

Statute are protected in situations involving changes in 

conditions of employment, we must also seek to discharge 

our responsibilities in a fashion that promotes meaningful 

bilateral negotiations. Interpreting the Statute to 

require bargaining over every single management 

action, no matter how slight the impact of that action, 

does not serve those aims. The limited scope of Federal 

sector bargaining caused by external laws, rules, and 

regulations also demands that the Authority not impose 

further limitations unless they are based on clear statutory 

authority and are buttressed by sound policy considerations.

Id. at 406-407 (emphasis added). 

Thus, the reasoning that the Unions point to in support of the 

“more than de minimis” standard equally supports use of the 

“substantial impact” standard. The substantial impact test is equally “a 

standard to distinguish between changes which require bargaining and 

those which do not” which “is fully supported by the Statute and its 

purposes and policies.” Id. at 406. As the Authority explained at length 

in its Policy Statement, the substantial impact test is meant to ensure 

that the Authority is not “unnecessarily burdened with cases that do 

not serve to bring meaning and purpose to the Federal labormanagement relations program,” “promote[] meaningful bilateral 

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54

negotiations,” and prevent the Statute from “requir[ing] bargaining over 

every single management action, no matter how slight the impact of 

that action.” (JA 18–20; compare HHS, SSA, 24 FLRA at 406.) 

What the Authority never explained in HHS, SSA or SSA Reg. V

is why those purposes are better advanced by the “more than de 

minimis” test rather than the “substantial impact” test. Thus, the 

Unions’ citation to HHS, SSA only underscores the truth of what the 

Authority said: that its “prior rejection of the substantial impact 

standard [wa]s specious and did not provide any rationale as to why the 

substantial impact standard was incorrect.” (Id. n.24.) HHS, SSA’s 

cryptic reference to “[t]he limited scope of Federal sector bargaining 

caused by external laws, rules, and regulations” can hardly be 

considered a reasoned explanation for why the “more than de minimis” 

test is superior to the “substantial impact” test, especially when read in 

context. HHS, SSA, 24 FLRA at 406.

B. The Policy Statement Is Consistent with AALJ and 

AFGE v. FLRA

The Unions contend that the Authority’s Policy Statement is 

contrary to AALJ and AFGE 2006. (Br. 25–31.) These arguments too 

are without merit. “A court’s prior judicial construction of a statute 

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55

trumps an agency construction otherwise entitled to Chevron deference 

only if the prior court decision holds that its construction follows from 

the unambiguous terms of the statute and thus leaves no room for 

agency discretion.” Brand X, 545 U.S. at 982. “This principle,” Brand X 

explained, “follows from Chevron itself.” Id. That is because “Chevron

established a presumption that Congress, when it left ambiguity in a 

statute meant for implementation by an agency, understood that the 

ambiguity would be resolved, first and foremost, by the agency, and 

desired the agency (rather than the courts) to possess whatever degree 

of discretion the ambiguity allows.” Id. 

Here, neither AALJ nor AFGE 2006 held that the “more than de 

minimis” standard “follows from the unambiguous terms of the statute 

and thus leaves no room for agency discretion.” Id. at 982. Indeed,

AALJ emphasized the precise opposite. AALJ, 397 F.3d at 962–63. 

Thus, as the Authority rightly noted, AALJ did not “insist[] . . . that the 

only acceptable way to express that a change lacked the significance 

necessary to trigger an agency’s duty to bargain was to call it ‘de 

minimis.’” (JA 20.) 

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This conclusion is strengthened, not undermined, by AALJ’s 

observations that “[a] de minimis change is not a proper subject of 

bargaining not because management has a ‘right’ to make it but 

because it has no appreciable effect upon working conditions” and that 

permitting a “de minimis” exception is “not an ability to depart from the 

statute, but rather a tool to be used in implementing the legislative 

design.” (Br. 27 (quoting AALJ, 397 F.3d at 962).) As the Authority 

explained in its Policy Statement, the “substantial impact” test serves 

the same function as the “more than de minimis” test: to “determin[e] 

whether a change to a condition of employment is significant enough to 

trigger a duty to bargain.” (JA 20.) The Authority found that the 

substantial impact test provides a “meaningful and determinative” 

standard for determining “whether a change is significant enough to 

warrant bargaining”—unlike the “more than de minimis” standard, 

which “ha[d] been drained of any determinative meaning” and 

effectively required what it was supposed to forbid: bargaining over 

trivia. (JA 18–20 & n.14.) AALJ held that the use of such a threshold 

test was consistent with the Statute’s text and purpose. AALJ, 397 

F.3d at 961–63.

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At this point, the Unions again fall back on their cherrypicked 

definition of “substantial” as “significantly great” and argue, on that 

basis, that it has a different meaning than “appreciable.” (Br. 29–30.) 

But, properly defined, the two terms mean the same thing. As 

explained above, the top two definitions of “substantial” are “consisting 

or relating to substance” and “not imaginary or illusory.” Substantial, 

Merriam-Webster Online Dictionary, https://www.merriamwebster.com/dictionary/substantial. In this context, “substance” means 

“practical importance: meaning, usefulness.” Substance, MerriamWebster Online Dictionary, https://www.merriamwebster.com/dictionary/substance. “Appreciable” means “capable of 

being perceived or measured.” Appreciable, Merriam-Webster Online 

Dictionary, https://www.merriam-webster.com/dictionary/appreciable. 

Thus, as the Authority rightly concluded, the two words are synonyms. 

(JA 20.) More to the point, by using terms like “appreciable,” 

“insignificant,” or “de minimis” AALJ clearly did not mean to preclude 

the Authority from formulating the threshold test using different words. 

Nor did AALJ do so by its passing reference to the “the narrow 

limits of the de minimis doctrine[.]” AALJ, 397 F.3d at 963. The full 

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context of that quote responded to the unions’ concern in that case that 

the de minimis exception would “upset the balance at the bargaining 

table” and “seriously damage the union’s collective bargaining efforts.” 

Id. The Court found that concern was “misplaced in view of the narrow 

limits of the de minimis doctrine, for the Authority will bear the burden 

before this court of showing that any particular application of the de 

minimis exception is reasonable.” Id. at 963. So too here, the Authority 

will bear the burden in future cases of showing that any particular 

application of the substantial impact test is reasonable and consistent 

with the Statute. 

Like AALJ, AFGE 2006 did not hold that the “more than de 

minimis” standard “follows from the unambiguous terms of the statute 

and thus leaves no room for agency discretion.” Brand X, 545 U.S. at 

982. Instead, AFGE 2006 took pains to underscore that it only 

“address[ed] the reasonableness of the FLRA’s application of the de 

minimis exception” to the facts of that particular case, involving an 

agency’s revision to its firearms policy. AFGE 2006, 446 F.3d at 165. 

Because the Court found that the change at issue was “massive,” it 

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concluded that the Authority “unreasonably applied the de minimis 

exception.” Id. at 167.

* * * * *

A primary purpose of the Brand X rule that agency constructions 

of ambiguous statutes receive Chevron deference, notwithstanding prior 

judicial interpretations, is to prevent “the ossification of large portions 

of our statutory law[.]” Brand X, 545 U.S. at 983. Here, the Authority 

confronted a test (“more than de minimis”) that it found had “been 

drained of any determinative meaning” and effectively been extended to 

require “that a matter triggers an agency’s duty to bargain whenever 

management has made any decision, no matter how small or trivial,” in 

spite of its original purpose to prevent bargaining over such matters. 

(JA 18.) The Authority traced the problem back to the de minimis test’s 

command to bargain over matters that have no substantial impact on a 

condition of employment. (JA 20.) Further, the Authority observed

that it had initially applied a substantial impact test, before switching

to the “more than de minimis” standard at some point in the 1980s 

without explaining why. (JA 17–18.) And, it noted that the NLRB has 

consistently applied a substantial impact test both now and before the 

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Statute was enacted. (JA 19.) AALJ did not preclude the Authority 

from correcting its misguided precedent and replacing the unworkable 

de minimis standard with the substantial impact test. 

C. The Authority Reasonably Relied Upon Relevant 

NLRB Precedent

Next, the Unions argue that it was not just incorrect but 

unreasonable for the Authority to look to NLRB precedent concerning 

the duty to bargain under the NLRA. (Br. 31–33.) This argument is 

startling in light of this Court’s repeated pronouncements holding the 

precise opposite—that it is reversible error for the Authority not to look 

to NLRB precedent in determining the scope of bargaining under the 

Statute. U.S. Dep’t of Navy, Naval Aviation Depot, Cherry Point, N.C.

v. FLRA, 952 F.2d 1434, 1436–37, 1439-41 (D.C. Cir. 1992); AFGE 1988, 

853 F.2d at 992; Local 32, Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA, 

774 F.2d 498, 503–04 (D.C. Cir. 1985); cf. U.S. Dep’t of Treasury, I.R.S. 

v. FLRA, 996 F.2d 1246, 1252 (D.C. Cir. 1993) (“[i]n interpreting the 

[Statute] we look to generally accepted principles of labor law developed 

under the [NLRA] to inform our understanding of the language 

Congress uses”); Library, 699 F.2d at 1286–88 (looking to NLRB 

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61

precedent in determining the meaning of “conditions of employment” 

under the Statute). 

This Court has insisted that “when the Authority departs from a 

familiar principle rooted in private sector precedent, it should either 

identify practical distinctions between private and governmental needs 

that justify the departure, or offer some evidence in the language, 

history, or structure of the statute suggesting that Congress intended a 

different result.” AFGE 1988, 853 F.2d at 992. The substantial impact 

test, which the NLRB has applied for over 50 years to measure the 

scope of bargaining under the NLRA, is certainly a “familiar principle 

rooted in private sector precedent.” Id. And, as the Authority correctly 

found, there is no reason to depart from it. (JA 19 & nn.28–30). As 

noted supra, there is no meaningful difference between the text of the 

Statute and the NLRA in defining the duty to bargain that would 

suggest that the “substantial impact” test should not apply. 

D. The Court Should Defer to the Authority’s WellSupported Finding That the “More Than De Minimis” 

Test Yielded Inconsistent Results

In its Policy Statement, the Authority contrasted the results of 

eight different cases applying the “more than de minimis” test to show 

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62

that it has yielded unpredictable and unworkable results. (JA 18 & 

n.14.) The Unions contend this was not enough to justify abandoning 

the “more than de minimis” test. (Br. 34–36.) But the Unions do not 

bother discussing any of the cases the Authority cited or make any 

effort to explain how their results were consistent with one another.

(Id.) Instead, they contend that “the inherently fact dependent nature 

of the de minimis exception” means that cases applying the de minimis 

test will always turn on their particular facts. (Br. 34.) 

The implications of this view are astounding. Under the Unions’ 

way of thinking, it is perfectly fine—indeed, required —for the 

Authority to use a test that is so fact-dependent that its outcome can 

never be predicted in advance. The Unions’ contention that it can never 

be known ex ante whether a management-initiated change will be 

considered “de minimis” amply supports the Authority’s decision to 

discard that test. The practical result of such unpredictability is exactly 

why the Authority changed the standard: agencies being required to 

bargain “whenever management has made any decision, no matter how 

small or trivial.” (JA 18.)

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The Unions fatalistically contend that “[t]he same result will 

obtain with the substantial impact standard” because, supposedly, any 

fact-dependent test will yield unpredictable results. (Br. 34–35.) But

the Authority’s determination that the “substantial impact” test would 

“draw a line that is meaningful and determinative,” (JA 19,) is precisely 

the sort of predictive judgment to which this Court accords heightened 

deference. BNSF Ry. Co. v. Surface Transp. Bd., 526 F.3d 770, 781 

(D.C. Cir. 2008) (“It is well established that an agency’s predictive 

judgments about areas that are within the agency’s field of discretion 

and expertise are entitled to particularly deferential review, so long as 

they are reasonable.”) (quoting Wis. Pub. Power, Inc. v. FERC, 493 F.3d 

239, 260 (D.C.Cir.2007)). 

In addition, the Authority gave at least two reasons to believe that 

the substantial impact test would succeed in yielding predictable 

results where the “more than de minimis” test had failed, and the 

Unions do not respond to either. First, there is a body of over 50 years 

of NLRB case law from which to draw in deciding whether a 

management-initiated change requires bargaining under the 

substantial impact test. (JA 18 & nn.28–30.) The Unions do not argue 

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64

that private-sector precedent is unworkable or yields unpredictable

results, nor could they. 

Second, the Authority observed that “[b]y definition, ‘de minimis’ 

signals triviality,” and that it was “incongruous to impose a statutory 

duty to bargain on matters that are barely more than trivial” and which 

have “no substantial impact on conditions of employment.” (JA 20.) By 

contrast, a substantial impact test focuses not on the supposed need for 

the agencies and unions to bargain over matters that are barely more 

than trivial, but on the requirement that a change must impact working 

conditions in a substantial and meaningful way before bargaining is 

required. Saying that a change must have a substantial impact on 

employees is a perfectly clear and natural way of expressing that

common-sense idea. See Ass’n of Civilian Technicians v. FLRA, 353 

F.3d 46, 52 (D.C. Cir. 2004) (Henderson, J., concurring) (“To engage in 

bargaining over such minutiae, which . . . has nothing to do with any 

substantive condition of employment, is a waste of everyone’s time[.]”).

CONCLUSION

For the foregoing reasons, the Authority respectfully requests that 

the Court deny the Petitions for Review. 

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Respectfully submitted,

/s/Noah Peters

NOAH PETERS

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

SARAH C. BLACKADAR

Attorney

Federal Labor Relations Authority

1400 K Street, NW

Washington, DC 20424

(202) 218-7908

March 19, 2021

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FED. R. APP. P. RULE 32(A) CERTIFICATION

Pursuant to Fed. R. App. P. 32(a)(7)(B)(i), I hereby certify that this 

brief is double-spaced (except for extended quotations, headings, and 

footnotes) and is proportionally spaced, using Century Schoolbook font, 

14-point type. Based on a word count of my word processing system, 

this brief contains fewer than 13,000 words. It contains 12,663 words 

excluding exempt material. 

/s/ Noah Peters

Noah Peters

Solicitor 

Federal Labor Relations Authority

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of March, 2021, I 

electronically filed the foregoing with the Clerk of the Court for the 

United States Court of Appeals for the District of Columbia Circuit by 

using the CM/ECF system. I also certify that the foregoing document is 

being served on counsel of record and that service will be accomplished 

by the CM/ECF system. 

/s/ Noah Peters

Noah Peters

Solicitor 

Federal Labor Relations Authority

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ADDENDUM

Relevant Statues and Regulations

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TABLE OF CONTENTS

AUTHORITY PAGE

5 U.S.C. § 5332 ...........................................................................................1

5 U.S.C. § 7101(b).......................................................................................1

5 U.S.C. § 7102(2).......................................................................................1

5 U.S.C. § 7103(a).......................................................................................2

5 U.S.C. § 7105(a).......................................................................................7

5 U.S.C. § 7106(b).......................................................................................8

5 U.S.C. § 7114(b).......................................................................................9

5 U.S.C. § 7123(a).....................................................................................10

5 U.S.C. § 7135(b).....................................................................................10

29 U.S.C. § 158(d).....................................................................................11

5 C.F.R. § 2427.2.......................................................................................13

5 C.F.R. § 2427.4.......................................................................................13

5 C.F.R. § 2427.5.......................................................................................13

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5 U.S.C. § 5332

The General Schedule

(a)(1) The General Schedule, the symbol for which is “GS”, is the basic 

pay schedule for positions to which this subchapter applies. Each 

employee to whom this subchapter applies is entitled to basic pay in 

accordance with the General Schedule.

(2) The General Schedule is a schedule of annual rates of basic pay, 

consisting of 15 grades, designated “GS-1” through “GS-15”, 

consecutively, with 10 rates of pay for each such grade. The rates of pay 

of the General Schedule are adjusted in accordance with section 5303.

(b) When payment is made on the basis of an hourly, daily, weekly, or 

biweekly rate, the rate is computed from the appropriate annual rate of 

basic pay named by subsection (a) of this section in accordance with the 

rules prescribed by section 5504(b) of this title.

5 U.S.C. § 7101(b)

Findings and purpose

(b) It is the purpose of this chapter to prescribe certain rights and 

obligations of the employees of the Federal Government and to establish 

procedures which are designed to meet the special requirements and 

needs of the Government. The provisions of this chapter should be 

interpreted in a manner consistent with the requirement of an effective 

and efficient Government.

5 U.S.C. § 7102(2)

Employees rights

Each employee shall have the right to form, join, or assist any labor 

organization, or to refrain from any such activity, freely and without 

fear of penalty or reprisal, and each employee shall be protected in the 

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2

exercise of such right. Except as otherwise provided under this chapter, 

such right includes the right--

(2) to engage in collective bargaining with respect to conditions of 

employment through representatives chosen by employees under 

this chapter.

5 U.S.C. § 7103(a)

Definitions; application

(a) For the purpose of this chapter--

(1) “person” means an individual, labor organization, or agency;

(2) “employee” means an individual--

(A) employed in an agency; or

(B) whose employment in an agency has ceased because of 

any unfair labor practice under section 7116 of this title and 

who has not obtained any other regular and substantially 

equivalent employment, as determined under regulations 

prescribed by the Federal Labor Relations Authority;

but does not include--

(i) an alien or noncitizen of the United States who occupies a 

position outside the United States;

(ii) a member of the uniformed services;

(iii) a supervisor or a management official;

(iv) an officer or employee in the Foreign Service of the 

United States employed in the Department of State, the 

International Communication Agency, the Agency for 

International Development, the Department of Agriculture, 

or the Department of Commerce; or

(v) any person who participates in a strike in violation of 

section 7311 of this title;

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(3) “agency” means an Executive agency (including a 

nonappropriated fund instrumentality described in section 2105(c) 

of this title and the Veterans' Canteen Service, Department of 

Veterans Affairs), the Library of Congress, the Government 

Publishing Office, and the Smithsonian Institution1 but does not 

include--

(A) the Government Accountability Office;

(B) the Federal Bureau of Investigation;

(C) the Central Intelligence Agency;

(D) the National Security Agency;

(E) the Tennessee Valley Authority;

(F) the Federal Labor Relations Authority;

(G) the Federal Service Impasses Panel; or

(H) the United States Secret Service and the United States 

Secret Service Uniformed Division.

(4) “labor organization” means an organization composed in whole 

or in part of employees, in which employees participate and pay 

dues, and which has as a purpose the dealing with an agency 

concerning grievances and conditions of employment, but does not 

include--

(A) an organization which, by its constitution, bylaws, tacit 

agreement among its members, or otherwise, denies 

membership because of race, color, creed, national origin, 

sex, age, preferential or nonpreferential civil service status, 

political affiliation, marital status, or handicapping 

condition;

(B) an organization which advocates the overthrow of the 

constitutional form of government of the United States;

(C) an organization sponsored by an agency; or

(D) 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;

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(5) “dues” means dues, fees, and assessments;

(6) “Authority” means the Federal Labor Relations Authority 

described in section 7104(a) of this title;

(7) “Panel” means the Federal Service Impasses Panel described 

in section 7119(c) of this title;

(8) “collective bargaining agreement” means an agreement 

entered into as a result of collective bargaining pursuant to the 

provisions of this chapter;

(9) “grievance” means any complaint--

(A) by any employee concerning any matter relating to the 

employment of the employee;

(B) by any labor organization concerning any matter 

relating to the employment of any employee; or

(C) by any employee, labor organization, or agency 

concerning--

(i) the effect or interpretation, or a claim of breach, of a 

collective bargaining agreement; or

(ii) any claimed violation, misinterpretation, or 

misapplication of any law, rule, or regulation affecting 

conditions of employment;

(10) “supervisor” means an individual employed by an agency 

having authority in the interest of the agency to hire, direct, 

assign, promote, reward, transfer, furlough, layoff, recall, suspend, 

discipline, or remove employees, to adjust their grievances, or to 

effectively recommend such action, if the exercise of the authority 

is not merely routine or clerical in nature but requires the 

consistent exercise of independent judgment, except that, with 

respect to any unit which includes firefighters or nurses, the term 

“supervisor” includes only those individuals who devote a 

preponderance of their employment time to exercising such 

authority;

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(11) “management official” means an individual employed by an 

agency in a position the duties and responsibilities of which 

require or authorize the individual to formulate, determine, or 

influence the policies of the agency;

(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 goodfaith 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;

(13) “confidential employee” means an employee who acts in a 

confidential capacity with respect to an individual who formulates 

or effectuates management policies in the field of labormanagement relations;

(14) “conditions of employment” means personnel policies, 

practices, and matters, whether established by rule, regulation, or 

otherwise, affecting working conditions, except that such term 

does not include policies, practices, and matters--

(A) relating to political activities prohibited under 

subchapter III of chapter 73 of this title;

(B) relating to the classification of any position; or

(C) to the extent such matters are specifically provided for 

by Federal statute;

(15) “professional employee” means--

(A) an employee engaged in the performance of work--

(i) requiring knowledge of an advanced type in a field of 

science or learning customarily acquired by a 

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prolonged course of specialized intellectual instruction 

and study in an institution of higher learning or a 

hospital (as distinguished from knowledge acquired by 

a general academic education, or from an 

apprenticeship, or from training in the performance of 

routine mental, manual, mechanical, or physical 

activities);

(ii) requiring the consistent exercise of discretion and 

judgment in its performance;

(iii) which is predominantly intellectual and varied in 

character (as distinguished from routine mental, 

manual, mechanical, or physical work); and

(iv) which is of such character that the output produced 

or the result accomplished by such work cannot be 

standardized in relation to a given period of time; or

(B) an employee who has completed the courses of 

specialized intellectual instruction and study described in 

subparagraph (A)(i) of this paragraph and is performing 

related work under appropriate direction or guidance to 

qualify the employee as a professional employee described in 

subparagraph (A) of this paragraph;

(16) “exclusive representative” means any labor organization 

which--

(A) is certified as the exclusive representative of employees 

in an appropriate unit pursuant to section 7111 of this title; 

or

(B) was recognized by an agency immediately before the 

effective date of this chapter as the exclusive representative 

of employees in an appropriate unit--

(i) on the basis of an election, or

(ii) on any basis other than an election,

and continues to be so recognized in accordance with the 

provisions of this chapter;

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(17) “firefighter” means any employee engaged in the performance 

of work directly connected with the control and extinguishment of 

fires or the maintenance and use of firefighting apparatus and 

equipment; and

(18) “United States” means the 50 States, the District of 

Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin 

Islands, the Trust Territory of the Pacific Islands, and any 

territory or possession of the United States.

5 U.S.C. § 7105(a)

Powers and duties of the Authority

(a)(1) The Authority shall provide leadership in establishing policies 

and guidance relating to matters under this chapter, and, except as 

otherwise provided, shall be responsible for carrying out the purpose of 

this chapter.

(2) The Authority shall, to the extent provided in this chapter and 

in accordance with regulations prescribed by the Authority--

(A) determine the appropriateness of units for labor 

organization representation under section 7112 of this title;

(B) supervise or conduct elections to determine whether a 

labor organization has been selected as an exclusive 

representative by a majority of the employees in an 

appropriate unit and otherwise administer the provisions 

of section 7111of this title relating to the according of 

exclusive recognition to labor organizations;

(C) prescribe criteria and resolve issues relating to the 

granting of national consultation rights under section 

7113 of this title;

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(D) prescribe criteria and resolve issues relating to 

determining compelling need for agency rules or regulations

under section 7117(b) of this title;

(E) resolves issues relating to the duty to bargain in good 

faith under section 7117(c) of this title;

(F) prescribe criteria relating to the granting of consultation 

rights with respect to conditions of employment 

under section 7117(d) of this title;

(G) conduct hearings and resolve complaints of unfair labor 

practices under section 7118 of this title;

(H) resolve exceptions to arbitrator's awards under section 

7122 of this title; and

(I) take such other actions as are necessary and appropriate 

to effectively administer the provisions of this chapter.

5 U.S.C. § 7106(b)

Management Rights

(b) Nothing in this section shall preclude any agency and any labor 

organization from negotiating--

(1) at the election of the agency, on the numbers, types, and 

grades of employees or positions assigned to any organizational 

subdivision, work project, or tour of duty, or on the technology, 

methods, and means of performing work;

(2) procedures which management officials of the agency will 

observe in exercising any authority under this section; or

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 90 of 116
9

(3) appropriate arrangements for employees adversely affected by 

the exercise of any authority under this section by such 

management officials.

5 U.S.C. § 7114(b)

Representation Rights and Duties

(b) The duty of an agency and an exclusive representative to negotiate 

in good faith under subsection (a) of this section shall include the 

obligation--

(1) to approach the negotiations with a sincere resolve to reach a 

collective bargaining agreement;

(2) to be represented at the negotiations by duly authorized 

representatives prepared to discuss and negotiate on any 

condition of employment;

(3) to meet at reasonable times and convenient places as 

frequently as may be necessary, and to avoid unnecessary delays;

(4) in the case of an agency, to furnish to the exclusive 

representative involved, or its authorized representative, upon 

request and, to the extent not prohibited by law, data--

(A) which is normally maintained by the agency in the 

regular course of business;

(B) which is reasonably available and necessary for full and 

proper discussion, understanding, and negotiation of 

subjects within the scope of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or 

training provided for management officials or supervisors, 

relating to collective bargaining; and

(5) if agreement is reached, to execute on the request of any party 

to the negotiation a written document embodying the agreed 

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 91 of 116
10

terms, and to take such steps as are necessary to implement such 

agreement.

5 U.S.C. § 7123(a)

Judicial review; enforcement

(a) Any person aggrieved by any final order of the Authority other than 

an order under--

(1) section 7122 of this title (involving an award by an arbitrator), 

unless the order involves an unfair labor practice under section 

7118 of this title, or

(2) section 7112 of this title (involving an appropriate unit 

determination),

may, during the 60-day period beginning on the date on which the order 

was issued, institute an action for judicial review of the Authority's 

order in the United States court of appeals in the circuit in which the 

person resides or transacts business or in the United States Court of 

Appeals for the District of Columbia.

5 U.S.C. § 7135(b)

Continuation of existing laws, recognitions, agreements, and 

procedures

(b) Policies, regulations, and procedures established under and 

decisions issued under Executive Orders 11491, 11616, 11636, 11787, 

and 11838, or under any other Executive order, as in effect on the 

effective date of this chapter, shall remain in full force and effect until 

revised or revoked by the President, or unless superseded by specific 

provisions of this chapter or by regulations or decisions issued pursuant 

to this chapter.

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 92 of 116
11

29 U.S.C. § 158(d)

Unfair Labor Practices

(d) Obligation to bargain collectively

For the purposes of this section, to bargain collectively is the 

performance of the mutual obligation of the employer and the 

representative of the employees to meet at reasonable times and confer 

in good faith with respect to wages, hours, and other terms and 

conditions of employment, or the negotiation of an agreement, or any 

question arising thereunder, and the execution of a written contract 

incorporating any agreement reached if requested by either party, but 

such obligation does not compel either party to agree to a proposal or 

require the making of a concession: Provided, That where there is in 

effect a collective-bargaining contract covering employees in an industry 

affecting commerce, the duty to bargain collectively shall also mean 

that no party to such contract shall terminate or modify such contract, 

unless the party desiring such termination or modification--

(1) serves a written notice upon the other party to the contract of 

the proposed termination or modification sixty days prior to the 

expiration date thereof, or in the event such contract contains no 

expiration date, sixty days prior to the time it is proposed to make 

such termination or modification;

(2) offers to meet and confer with the other party for the purpose 

of negotiating a new contract or a contract containing the 

proposed modifications;

(3) notifies the Federal Mediation and Conciliation Service within 

thirty days after such notice of the existence of a dispute, and 

simultaneously therewith notifies any State or Territorial agency 

established to mediate and conciliate disputes within the State or 

Territory where the dispute occurred, provided no agreement has 

been reached by that time; and

(4) continues in full force and effect, without resorting to strike or 

lock-out, all the terms and conditions of the existing contract for a 

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 93 of 116
12

period of sixty days after such notice is given or until the 

expiration date of such contract, whichever occurs later:

The duties imposed upon employers, employees, and labor organizations 

by paragraphs (2) to (4) of this subsection shall become inapplicable 

upon an intervening certification of the Board, under which the labor 

organization or individual, which is a party to the contract, has been 

superseded as or ceased to be the representative of the employees 

subject to the provisions of section 159(a) of this title, and the duties so 

imposed shall not be construed as requiring either party to discuss or 

agree to any modification of the terms and conditions contained in a 

contract for a fixed period, if such modification is to become effective 

before such terms and conditions can be reopened under the provisions 

of the contract. Any employee who engages in a strike within any notice 

period specified in this subsection, or who engages in any strike within 

the appropriate period specified in subsection (g) of this section, shall 

lose his status as an employee of the employer engaged in the particular 

labor dispute, for the purposes of sections 158, 159, and 160 of this title, 

but such loss of status for such employee shall terminate if and when he 

is reemployed by such employer. Whenever the collective bargaining 

involves employees of a health care institution, the provisions of this 

subsection shall be modified as follows:

(A) The notice of paragraph (1) of this subsection shall be ninety 

days; the notice of paragraph (3) of this subsection shall be sixty 

days; and the contract period of paragraph (4) of this subsection 

shall be ninety days.

(B) Where the bargaining is for an initial agreement following 

certification or recognition, at least thirty days' notice of the 

existence of a dispute shall be given by the labor organization to 

the agencies set forth in paragraph (3) of this subsection.

(C) After notice is given to the Federal Mediation and Conciliation 

Service under either clause (A) or (B) of this sentence, the Service 

shall promptly communicate with the parties and use its best 

efforts, by mediation and conciliation, to bring them to agreement. 

The parties shall participate fully and promptly in such meetings 

as may be undertaken by the Service for the purpose of aiding in a 

settlement of the dispute.

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 94 of 116
13

5 C.F.R. § 2427.2

Requests for general statements of policy or guidance.

(a) The head of an agency (or designee), the national president of a 

labor organization (or designee), or the president of a labor organization 

not affiliated with a national organization (or designee) may separately 

or jointly ask the Authority for a general statement of policy or 

guidance. The head of any lawful association not qualified as a labor 

organization may also ask the Authority for such a statement provided 

the request is not in conflict with the provisions of chapter 71 of title 5 

of the United States Code or other law.

(b) The Authority ordinarily will not consider a request related to any 

matter pending before the Authority, General Counsel, Panel or 

Assistant Secretary.

5 C.F.R. § 2427.4

Submissions from Interested Parties

Prior to issuance of a general statement of policy or guidance the 

Authority, as it deems appropriate, will afford an opportunity to 

interested parties to express their views orally or in writing.

5 C.F.R. § 2427.5

Standards governing issuance of general statements of policy or 

guidance.

In deciding whether to issue a general statement of policy or guidance, 

the Authority shall consider:

(a) Whether the question presented can more appropriately be resolved 

by other means;

(b) Where other means are available, whether an Authority statement 

would prevent the proliferation of cases involving the same or similar 

question;

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 95 of 116
14

(c) Whether the resolution of the question presented would have 

general applicability under the Federal Service Labor–Management 

Relations Statute;

(d) Whether the question currently confronts parties in the context of a 

labor-management relationship;

(e) Whether the question is presented jointly by the parties involved; 

and

(f) Whether the issuance by the Authority of a general statement of 

policy or guidance on the question would promote constructive and 

cooperative labor-management relationships in the Federal service and 

would otherwise promote the purposes of the Federal Service Labor–

Management Relations Statute.

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 96 of 116
ADDENDUM OF ADMINISTRATIVE PRECEDENT UNDER 

EXECUTIVE ORDER 11491

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 97 of 116
TABLE OF CONTENTS

Am. Fed’n of Gov’t Emps. Local 1940, 

No. 71A-11, 1 FLRC 101, 102 (Jul. 9, 1971)...........................................1

Am. Fed’n of Gov’t Emps., Local 2578, 

No. 965, 8 A/SLMR 61, 63 (Jan. 11, 1978) .............................................5

Army and Air Force Exchange Serv. Keesler Consolidated Exchange, 

No. 144 2 A/SLMR 170, 175 (Mar. 28, 1972)..........................................9

Dep’t of Def., Air Nat’l Guard, Tex. Air Nat’l Guard, Camp Mabry, 

Austin, Tex., 

No. 738, 6 A/SLMR 591, 592 (Nov. 4, 1976) .........................................17

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 98 of 116
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

WASHINGTON, D.C. 20415

AFGE Local 1940

and FLRC No. 71A-11

Plum Island Animal Disease

Laboratory, Dept, of Agriculture,

Greenport, N. Y.

DECISION ON NEGOTIABILITY ISSUE

Background of Case

During negotiations on a supplement to the agreement between the union

and Plum Island Animal Disease Laboratory (PIADL), a dispute arose over

the establishment of tours of duty by the agency. The circumstances

surrounding this dispute are briefly as follows:

PIADL is a facility located on an island a short distance off the

coast of the United States, and engaged in research on exotic diseases

of animals. Its major operations are conducted in two laboratory buildings, a decontamination plant and a power plant. To provide for roundthe-clock operation and maintenance of its buildings and equipment,

PIADL currently employs four crews of 11 men each (including a foreman),

who work on three rotating, weekly shifts, and who supplement the

regular 8-hour, 5 days per week, maintenance employees.

Management has now decided that, by reason of improvements in equipment

and operating procedures, its work can be more effectively and efficiently

accomplished by eliminating the third shift in one laboratory, and establishing two new fixed shifts, working on a regular five day basis. No

reductions in force or in grades are anticipated, although premium pay

would be reduced. Improved staffing of the first eind second shifts

would be effected by the agency action.

The union claims that such changes in tours of duty, and particularly

the establishment of new tours, are negotiable, and submitted the

following proposal on tours of duty, during bargaining on the supplemental agreement;

101

1

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 99 of 116
Both parties recognize that management has the right to fix

and to assign the number, tj^pe and grades of personnel to

any segment in its organization, to any location and to an

approved scheduled tour of duty. Changes in personnel from

one scheduled shift to another, or from one existing fiveday period to another, are assignments or scheduling of

personnel and not changes in tours of duty.

Should management in exercising the above-cited rights determine that a change in scheduled tours of duty is necessary to

maintain the efficiency of the Government operations entrusted

to them, such determination will be presented to the Local

representatives with a recommended revised schedule tour of

duty for consideration, together with a recommended effective

date, not less than two pay periods dating from the date it

is presented to the Local.

During the above period, consultations will be undertaken to

arrive at a mutually acceptable schedule. If consultation

does not result in a mutually acceptable tour of duty and if

requested by the Local, negotiations of a formal schedule

will be initiated; these negotiations shall be conducted in

good faith to assure no undue delay in establishing an effective date for a revised schedule.

Tours of duty now in existence will remain the same unless

changed in accordance with the provisions of this article.

PIADL asserted that the union's proposal is non-negotiable and, upon

referral, the Department of Agriculture upheld such position, on the

ground that the proposal conflicts with management's rights under the

Order. The union appealed to the Council from Agriculture's determination, and the Council accepted the petition for review under section

11(c)(4) of the Order.

Opinion

The essential question is whether changes in tours of duty, including the

establishment of new tours, must be negotiated under section 11(a) of the

Order, or whether such changes are excepted from the obligation to bargain,

particularly under section 11(b) of tiie Order.

Section 11(a) provides that an agency and the exclusive representative

of its employees shall negotiate "with respect to personnel policies and

practices and matters affecting working conditions, so far as may be

appropriate under , . . this Order." Section 11(b), however, excludes

from the obligation to bargain "matters with respect to . . . the

numbers, types, and grades of positions or employees assigned to an

102

2

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 100 of 116
organizational unit, woi'k project or tour of duty." Section 11(b)

further provides: "This does not preclude the parties from negotiating

agreements providing appropriate arrangements for employees adversely

affected by the impact of realignment of work forces or technological

change."

The intent of the foregoing provisions in section 11(b) is explained

in the Report accompanying E.O. 11491 (Labor-Management Relations in

the Federal Service (1969)), as follows (pp. 38-39):

We believe there is need to clarify the present language

in section 6(b) of [E.O. 10988, which preceded E.O. 11491

and which excluded from the obligation to bargain an

agency's "assignment of its personnel"]. The words 'assignment of its personnel' apparently have been interpreted by

some as excluding from the scope of negotiations the policies

or procedures management will apply in taking such actions as

the assignment of employees to particular shifts or the

assignment of overtime. This clearly is not the intent of

the language. This language should be considered as applying

to an agency's right to establish staffing patterns for its

organization and the accomplishment of its work -- the number

of employees in the agency and the number, type and grades of

positions or employees assigned in the various segments of its

organization and to work projects and tours of duty.

To remove «iny possible future misinterpretation of the intent

of the phrase 'assignment of its personnel,' we recommend

that there be substituted in a new order the phrase 'the

number of employees, and the numbers, types and grades of

positions, or employees assigned to an organizational unit,

.work project or tour of duty.' As further clarification, a

sentence should be added to this section providing that

agencies and labor organizations shall not be precluded from

negotiating agreements providing for appropriate arrangements

for employees adversely affected by the impact of realignment

of work forces or technological change. (Emphasis supplied)

It is plain from the foregoing that the establishment or change of

tours of duty was Intended to be excluded from the obligation to bargain under section 11(b). As stated in the Report, the agency has the

right to determine the "staffing patterns" for its organization and for

accomplishing its mission. Clearly, the number of its work shifts or

tours of duty, and the duration of the shifts, comprise an essential

and integral part of the "staffing patterns" necessary to perform the

work of the agency. Further, the specific right of an agency to determine the "numbers, types, and grades of positions or employees" assigned

to a shift or tour of duty, as provided in section 11(b), obviously

103

3

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 101 of 116
subsumes the agency's right to fix or change the number and duration

of those shifts or tours. To hold otherwise, i.e. to interpret

section 11(b) as sanctioning the right of the agency to determine the

composition of the shift or tour and not the framework upon which that

composition depends, would render the provisions of section 11(b)

virtually meaningless.

While the obligation to bargain does not therefore extend to the establishment or change of tours of duty under section 11(b), negotiations

may be required on the impact of such actions on the employees involved.

For example, as indicated in the Report, bargaining may be required on

the criteria for the assignment of individual employees to particular

shifts; on appropriate arrangements for employees who are adversely

affected by the realignment of the work force; and the like. Indeed,

the agency stated in the instant case, "There is no disagreement that

matters such as procedures for determining how qualified individuals

will be assigned to a particular shift or tour and advance notice of

such changes before they are made are negotiable and agreement has, in

fact, been reached on those matters."

T\iming now to the union's proposal in the present case, this proposal

would, among other things, require bargaining on changes of tours of duty

if so requested by the union, and would proscribe any such changes by the

agency unless agreed upon by the union. As already indicated, the obligation of an agency to bargain does not extend to the establishment or

changes of tours of duty under section 11(b). PIADL was consequently

free from the obligation to bargain on this proposal by the union.

Accordingly, pursuant to section 2411.18(d) of the Council's rules of

procedure, we hold that the determination by the Department of Agriculture

that negotiations were not required on the union's proposal here involved

was proper and must be sustained.

By the Ck)uncil.

W.

Executive Dir^

Issued: July 9, 1971

104

4

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January 11, 1978

UNITED STATES DEPARTMENT OF LABOR 

ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS 

SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY 

PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED

AMERICAN FEDERATION OF GOVERNMENT 

EMPLOYEES, LOCAL 2578, AFL-CIO, 

AND NATIONAL ARCHIVES AND RECORDS 

SERVICE

A/SLMR No. 965________________

This proceeding involved two unfair labor practices complaints.

The first complaint, filed by the National Archives and Records Service 

(NARS\ alleged that the American Federation of Government Employees,

Local 2578, AFL-CIO (AFGE) violated Section 19(b)(6) of the Order by 

failing to negotiate a new agreement during September 1975. The second 

complaint, filed by the AFGE, alleged that the NARS violated Section 

19(a)(1) and (6) of the Order by failing to negotiate in good faith, to 

meet at reasonable times, and to give its negotiators the authority to 

negotiate an agreement.

The Administrative Law Judge found that the NARS violated Section 

19(a)(6) of the Order by, in effect, engaging in a calculated strategy 

of delay which resulted in the exhaustion of official time for the AFGE 

negotiating team and discouraged the AFGE from proceeding with negotiations 

for a new agreement. Thus, he found that the NARS offered proposals 

"demeaning and unacceptable to the Union; Which had the Union on the 

defensive attempting to hold on to what it had instead of moving for 

improvement on the existing contract." In this regard, he took particular 

note of proposals relating to three contract provisions, which, in his 

view, evidenced an intention bn the part of the Activity negotiators to 

discourage the AFGE from proceeding with contract negotiations. With 

respect to the complaint against the AFGE, the Administrative Law Judge 

found that, under the circumstances,.the AFGE was justified in breaking 

off contract negotiations and, therefore, its conduct was not violative 

of Section 19(b)(6) of the Order.

The Assistant Secretary disagreed with the Administrative Law 

Judge's finding of a Section 19(a)(6) violation against the NARS. He 

noted that the duty to bargain in "good faith" requires that parties to 

negotiations approach the bargaining table with an open mind and a 

sincere desire to reach agreement. This duty does not require either party

to agree to a proposal or make concessions and no inference of bad faith 

bargaining can be drawn solely from a party's failure to retreat from 

its initial proposals. In addition to approaching bargaining with an 

open mind and a sincere desire to reach agreement, the duty to bargain 

in good faith requires that the parties make an earnest effort to reach 

agreement through the collective bargaining process. In determining 

whether a party has bargained in good faith the Assistant Secretary will 

not substitute his judgment with respect to the merits of contract 

proposals. Thus, even if a proposal or proposals appear onerous or 

burdensome to the outside observer, they will not be deemed to constitute bad faith bargaining unless the totality of the evidence will 

support the conclusion that such proposal or proposals were advanced 

with the clear intent of evading or frustrating the bargaining responsibility.

The Assistant Secretary found that although Activity negotiators 

engaged in "hard bargaining" with the AFGE, the totality of its conduct 

did not reflect a closed mind and the absence of a desire to reach 

agreement. In this connection, he noted,among other things, that the 

NARS had made no take it or leave it demands but, rather, continued to 

make proposals and counter-proposals throughout the course of negotiations 

and displayed a willingness to consider alternative proposals.

With respect to the unfair labor practice complaint filed by the 

NARS alleging that the AFGE's absence from four negotiating sessions 

constituted a violation of Section 19(b)(6) of the Order, the Assistant 

Secretary, concluded, in agreement with the Administrative Law Judge, 

that the AFGE had not violated the Order. In this regard, he noted, 

among other things, that while the AFGE-team did not appear at the 

_ September negotiating sessions, its Chief Negotiator continued to 

communicate with his NARS counterpart in an attempt to gain a favorable 

arrangement in regard to his team's exhausted official time.

Accordingly, the Assistant Secretary ordered that the complaints be 

dismissed.

5

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 103 of 116
A/SLMR No. 965

UNITED STATES DEPARTMENT OF LABOR 

BEFORE THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS

AMERICAN FEDERATION OF GOVERNMENT 

EMPLOYEES, LOCAL 2578, AFL-CIO

Respondent

and Case No. 22-6621(CO)

NATIONAL ARCHIVES AND RECORDS.SERVICE 

Complainant 

NATIONAL ARCHIVES AND RECORDS SERVICE 

Respondent

and Case No. 22-6648(CA)

AMERICAN FEDERATION OF GOVERNMENT 

EMPLOYEES, LOCAL 2578, AFL-CIO

Complainant

DECISION AND ORDER

On June 15, 1977, Administrative Law Judge George A. Fath issued 

his Recommended Decision and Order in the above-entitled consolidated 

proceeding, finding in Case No. 22-6621(CO) that the Respondent labor 

organization, American Federation of Government Employees, Local 2578, 

AFL-CIO, hereinafter called AFGE or Union, had not engaged in conduct 

which was violative of the Order. In Case No. 22-6648(CA), the Administrative Law Judge found that the Respondent Activity, National 

Archives and Records Service, hereinafter called NARS or Activity, had 

engaged in certain unfair labor practices and recommended that it cease 

and desist therefrom and take certain affirmative actions as set forth 

in the attached Administrative Law Judge's Recommended Decision and 

Order. Thereafter, the NARS filed exceptions and a supporting brief 

with respect to the Administrative Law Judge's Recommended Decison and 

Order.

The Assistant Secretary has reviewed the rulings of the Administrative 

Law Judge made at the hearing and finds that no prejudicial error was 

committed. The rulings are hereby affirmed. Upon consideration of the

Administrative Law Judge's Recommended Decision and Order and the entire 

record in the subject cases, 1 / including the NARS1 exceptions and 

supporting brief, I hereby adopt the Administrative Law Judge’s findings, 

conclusions and recommendations, only to the extent consistent herewith.

The evidence establishes that in October 1974, the Chief Negotiators 

for the NARS and the AFGE signed ground rules drafted to govern the 

negotiations for a new agreement. The ground rules specified the 

composition of the bargaining teams; the days and times of bargaining 

sessions; a limit of 40 hours of official time for negotiations during 

duty hours for each member of the AFGE negotiating team; and a procedure 

for the Chief Negotiators to "initial off" individual contract clauses 

to indicate tentative agreement pending full and final agreement.

Negotiating sessions started on November 25, 1974, and continued 

until February 1975, when they were suspended by mutual agreement because of questions concerning the effect of the impending amendments to 

Executive Order 11491 and because of lack of progress. The record 

indicates that negotiations resumed on May 22, 1975, and continued until 

July 1975, at which time most of the AFGE negotiators had exhausted 

their 40 hours of official time. After a series of informal discussions 

between the Chief Negotiators in August 1975, the AFGE negotiators did 

not appear for further meetings or respond to the NARST request for 

bargaining sessions in September. The NARS subsequently filed the complaint 

in Case No. 22-6621(CO) alleging that the Union violated Section 19(b)(6) 

of the Order by failing to negotiate a new agreement during September

1975. Shortly thereafter, the AFGE filed its complaint in Case No. 22- 

6648(CA) alleging that the NARS violated Section 19(a)(1) and (6 ) of the 

Order by failing to negotiate in good faith, to meet at reasonable 

times, and to give its negotiators the authority to negotiate an agreement. 2 /

In case No. 22-6648(CA), the Administrative Law Judge found that 

the NARS violated Section 19(a)(6) of the Order by, in effect, engaging 

in a calculated strategy of delay which resulted in the exhaustion of

1/ The Administrative Law Judge did not introduce the formal documents 

into the record. However, inasmuch as the record in the instant 

case transferred to the Assistant Secretary included the formal 

documents, they are deemed to be properly included in the record 

within the meaning of Section 203.23(b) of the Assistant Secretary's 

Regulations. See Local Rl-57, National Association of Government 

Employees (NAGE), A/SLMR No. 896 (1977); Department of Health, 

Education and Welfare, Social Security Administration, Bureau of 

Field Operations, Region V-A, A/SLMR No. 832 (1977); Puget Sound 

Naval Shipyard, U.S. Department of the Navy, A/SLMR No. 829 (1977); 

and Charleston Naval Shipyard, 1 A/SLMR 27, A SLMR No. 1 (1970).

2/ The Regional Administrator dismissed the complaint in Case No. 

22-6648(CA) insofar as it alleged that the Activity had refused 

to meet at reasonable times and had failed to invest its negotiators 

with appropriate authority. This dismissal action was not appealed.

-2-

6

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 104 of 116
official time for the Union negotiating team and which discouraged the 

Union from proceeding with negotiations for a new agreement. Thus, the 

Administrative Law Judge found that the NARS offered proposals "demeaning 

and unacceptable to the Union, which had the Union on the defensive 

attempting to hold on to what it had instead of moving for improvement 

on the existing contract." In this regard, he took particular note of 

proposals relating to three contract provisions, the preamble, the 

grievance procedure, and the proposal on union representatives, which, 

in his view, evidenced an intention on the part of the Activity negotiators 

to discourage the AFGE from proceeding with contract negotiations. With 

respect to the preamble, the Administrative Law Judge noted that the 

amendment to the preamble was not "initialed off" until May 1975, some 

seven months after negotiations commenced, and that the only change from 

the existing preamble was the deletion of the concluding paragraph. In 

connection with the grievance procedure, the Administrative Law Judge 

found the Activity's proposals to be a "complicated maze of steps, 

stages, qualifications, time limits, and permission slips." And, in 

regard to management's proposal on union representatives, he noted that 

the NARS' negotiators proposed that a steward be appointed for each unit 

in each branch and division of the NARS, a proposal which would require 

45 stewards, and that employee violations of smoking and drinking prohibitions 

would result in disciplinary action taken against the steward in the 

branch or division in which the violating employee involved was a staff 

member.

The Administrative Law Judge also found evidence of collateral 

matters which he felt had a bearing on the issue of good faith bargaining. V 

He concluded that the course of conduct pursued by the NARS was tantamount 

to a refusal to consult, confer, or negotiate with the AFGE and, therefore, 

violated Section 19(a)(6) of the Order.

I disagree with the foregoing conclusion of the Administrative Law 

Judge. In my view, the record does not establish that the NARS engaged 

in a course of conduct which was violative of the Order. The duty to 

bargain in "good faith" set forth in Section 11(a) of the Order requires 

that parties to negotiations approach the bargaining table with an open 

mind and a sincere desire to reach agreement. This duty does not 

necessarily require either party to agree to a proposal or to make a 

concession. Thus, in my view, no inference of bad faith bargaining can 

be drawn solely from a party's failure to retreat from its initial 

proposals. In addition to approaching bargaining with an open mind and 

a sincere desire to reach agreement, the duty to bargain in good faith 

also requires that the parties make an earnest effort to reach agreement 

through the collective bargaining process. In determining whether a

3/ The collateral matters which the Administrative Law Judge Rioted were 

the alleged harrassment by the Activity of Union officers by eavesdropping on a Union business call and bad performance ratings; 

management's exclusion of additional employees from the exclusively 

represented unit and failure to give the AFGE a copy of its certification; and the expressions of management that it was not obligated 

to formulate training programs policy with the Union.

-3-

party has bargained in good faith the Assistant Secretary will not 

substitute his judgment with respect to the merits of contract proposals. 

Thus, even if a proposal or proposals appear onerous or burdensome to 

the outside observer, they will not be deemed to constitute bad faith 

bargaining unless the totality of the evidence supports the conclusion 

that such proposal or proposals were advanced with the clear intent of 

evading or frustrating the bargaining responsibility. In’my view, the 

record herein does not establish that the NARS violated its duty to 

bargain in good faith.

Although the Activity negotiators engaged in "hard bargaining" with 

the AFGE, the totality of their conduct, did not, in my opinion,reflect a 

closed mind and the absence of a desire to reach agreement. In this 

connection, the record reflects that the parties had reached tentative 

agreement on some eleven articles by the end of July 1975, and that the 

Activity, at no time, made any take it or leave it demands. Rather, it 

continued to make proposals and counter-proposals throughout the course 

of negotiations and it displayed a willingness to consider alternative 

proposals in order to reach agreement. 4_/ With respect to the specific 

Activity proposals on the grievance procedure and on union representatives 

and disciplinary actions alluded to by the Administrative Law Judge, in 

my opinion, they were not so inherently onerous or burdensome that, 

standing alone, they would evidence an intent not to reach agreement on 

the part of the Activity negotiators. Further, with respect to these 

items, the Activity did not refuse to consider proposals from the Union, 

and its original proposals were modified in the course of negotiations.

In regard to the bargaining over the preamble, the record discloses that 

the parties came to agreement on the proposed deletion the first and 

only time they negotiated over the matter. Further, the record reveals 

that the single paragraph deleted from the original preamble was essentially 

duplicative of one already contained in Article II of the negotiated 

agreement.

Nor, in my view, did the Activity’s contention that certain proposals 

made by the Union were non-negotiable, constitute bad faith bargaining 

under the circumstances of this case. Thus, the Union never chose to 

contest the Activity’s contention by other than a broad assertion that 

the latter was wrong and, with respect to those items deemed non-negotiable 

by the Activity’s Chief Negotiators, the AFGE was informed that the 

Union could request a determination by the agency head regarding the 

negotiability of any Union proposal, and that it could avail itself of 

the procedures set forth in Section 11(c) of the Order to determine the 

negotiability of any management proposal. The record shows that the 

AFGE never sought such determinations of negotiability.

4/ With respect to the Administrative Law Judge’s conclusion that the 

Respondent pursued a strategy of delay to cause the Complainant’s 

negotiators to exhaust off duty-time, it is noted that the Regional 

Administrator dismissed the AFGE’s allegation that the Activity had 

refused to meet at reasonable times and that the parties' ground 

rules were consistent with Section 20 of the Order. Moreover, the 

record reflects that the Activity's negotiators were willing to 

negotiate at adjustable times and, in a spirit of compromise, 

indicated that they would be willing to meet "half-on and half-off" 

the clock in an attempt to get the negotiations resumed.

-A7

USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 105 of 116
With respect to the collateral issues which the Administrative Law 

Judge referred to in his Recommended Decision and Order, the record 

reflects that the alleged harrassment, eavesdropping, and bad performance 

evaluations substantially pre-dated the commencement of the negotiations 

herein, and that no unfair labor practice complaints or grievances were 

filed in connection with"these allegations. As to the allegations of 

bad performance evaluations, while a -witness, in a self-serving statement, 

testified that his evaluations "could not be justified," there is no 

record evidence as to when the evaluations were made, what the evaluations 

were, or whether they were related in any way to his union activities.

In connection with the Activity1s contention in an unrelated proceeding 

that certain employees should be excluded from the existing unit, in my 

view, such contention, standing alone, is consistent with its rights 

under the Order and, absent any other evidence of improper motivation, 

cannot be deemed either violative of the Order or indicative of management's 

attitude with respect to the negotiation of an agreement. Thus, the 

Order permits irmnflgemp.nt to question an employee’s eligibility for 

inclusion within a unit, and it also permits an exclusive representative 

to contest management’s position through the filing of a petition for 

clarification of unit. Finally, the AFGE had the opportunity to seek a 

negotiability determination in regard to management's unilateral formulation 

of some training programs and failed to do so.

Accordingly, under all of these circumstances, I find, contrary to 

the Administrative Law Judge, that the NARS1 conduct was not violative 

of Section 19(a)(6) of the Order.

With respect to Case No. 22-6621(CO), the record indicates that in 

September 1975, the AFGE negotiators failed to appear for four negotiating 

sessions which had been proposed by the NARS negotiating team. The NARS 

contended that the AFGE's absence from these negotiating sessions constitute 

a violation of Section 19(b)(6) of the Order. The Administrative Law 

Judge found that the Union was justified in breaking off contract 

negotiations and, therefore, there was no violation of the Order. I 

agree with his conclusion. Thus, the evidence indicates that while the 

AFGE team did not appear at the September negotiating sessions, its 

Chief Negotiator continued to communicate with his NARS counterpart in 

an attempt to gain a favorable arrangement in regard to his team s 

exhausted official time. Moreover, in the context of the totality of 

the bargaining which took place between the parties, the AFGE’s absence 

from the four sessions, standing alone, was not considered to constitute 

bad faith bargaining. Accordingly, I find that the AFGE's conduct was 

not violative of Section 19(b)(6) of the Order.

ORDER

IT IS HEREBY ORDERED that the complaints in Case Nos. 22-6621(CO) 

and 22-6648(CA) be, and they hereby are, dismissed.

Dated, Washington, D.C.

January 11, 1978

Francis X. Burkhardt, Assistant Secretary of 

Labor for Labor-Management Relations

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USCA Case #20-1396 Document #1890683 Filed: 03/19/2021 Page 106 of 116
favored the AFGE over the NFFE by granting it privileges not accorded 

the NFFE. Therefore, I conclude that the announcement to its 

employees by the Activity in its December 23> 19T0 memorandum of 

availability to the AFGE of Activity facilities, not announced to its 

employees in the October 5> 19T0 memorandum as available to the 

NFFE„further interfered with the free choice of its employees to 

select an exclusive representative, and that the portion of 

Objection No. 5 going to this matter be sustained.

RECOMMENDATIONS

In view of my conclusions above that Objections Nos. 1 

and 2 and a portion of Objection No. 5 are meritorious, it is 

recommended that the Assistant Secretary sustain these objections. 

Further, it is recommended that the Assistant Secretary set aside 

the election conducted on January 2T, 19T1, and that he direct that 

a second election be conducted under the terms of Executive Order 

11U91, and in accordance with the applicable Regulations.

Dated at Washington, D. C. 

DECEMBER 6, 1971

15 -

March 28, 1972

UNITED STATES DEPARTMENT OF LABOR 

ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS 

SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY 

PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491

ARMY AND AIR FORCE EXCHANGE SERVICE, 

KEESLER CONSOLIDATED EXCHANGE 

A/SLMR No. 144___________________

This proceeding arose upon the filing of two unfair labor practice 

complaints. The first was initiated by Local 2670, American Federation of 

Government Employees, AFL-CIO (Union), in which a Section 19(a)(6) violation of Executive Order 11491 was alleged based on the Exchange's (1) dilatory tactics in delaying the start of negotiations; (2) failure to empower 

its principal negotiator with authority to conclude an agreement; (3) failure to offer meaningful proposals on certain subjects of negotiation;

(4) unilateral change in conditions of employment; (5) reliance on certain 

"unlawful" Army and Air Force Exchange Service (AAFES) personnel regulations; and (6) "closed mind" at the bargaining table as evidenced by its 

overall method of negotiating. The second complaint, initiated by the 

Exchange, alleged violation of Sections 19(b)(1) and (6) because of the 

Union's (1) failure to empower its principal negotiator and negotiating 

committee with authority to conclude an agreement; and (2) attitude of 

hostile contempt for the Executive Order and pertinent AAFES directives 

and regulations.

Following a consolidated hearing, the Hearing Examiner issued a 

Report and Recommendations dismissing both complaints in their entirety.

Upon consideration of the Hearing Examiner's Report and Recommendations 

and the entire record in the subject cases, including exceptions filed by 

the Exchange, the Assistant Secretary adopted the dismissal recommendations 

of the Hearing Examiner with certain modifications.

With respect to the action brought by the Union against the Exchange, 

the Assistant Secretary concluded that:

(1) The Exchange-caused delay of four months in the start of negotiations, standing alone, ordinarily would constitute a refusal to consult, 

confer, or negotiate within the meaning of Section 19(a)(6) of the Order. 

However, noting particularly that prior to January 1971, the Union did not 

press for immediate negotiations and once negotiations began they were 

transacted with sufficient diligence, no violation on this aspect of the 

complaint was found.

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(2) The Exchanged negotiating method of considering the Union's 

proposed collective-bargaining agreement article by article, rather 

than submitting its own counterproposals in advance, was a legitimate 

bargaining approach.

(3) Although the Exchange's principal negotiator indicated, at 

various times during bargaining sessions, that certain Union agreement 

proposals could not be approved because they were contrary to AAFES regulations and the Order, and, in addition, refused Union requests to seek 

changes in the pertinent regulations from higher authorities, in the circumstances of this case, such conduct did not violate the Order either in 

terms of the Exchange negotiator's authority to bargain, or in terms of 

overall good faith bargaining.

(4) Finally, as to the Exchange's refusal to discuss, in whole or in 

part, specific agreement proposals relating to hours of work, promotion, 

and dues checkoff, no Section 19(a)(6) violation was found at this time 

because of the Union’s failure to pursue procedures designated in 

Section 11(c) of the Executive Order. Additionally, the Assistant Secretary found that the Exchange's bargaining pertaining to the Union's arbitration proposal was in good faith.

The decision included a discussion of the implications of Section 11(c) 

procedures, and the respective roles of the Federal Labor Relations Council 

and the Assistant Secretary of Labor for Labor-Management Relations flowing 

therefrom.

With respect to the action brought by the Exchange against the Union, 

the Assistant Secretary concluded that the Hearing Examiner was correct in 

finding that the Union did not violate its duty to bargain under 

Section 19(b)(6) because the evidence did not support the contentions that 

the Union denied proper authority to its chief negotiator and negotiation 

committee members for consummating a collective-bargaining agreement. The 

evidence also failed to show that the Union negotiators* expressions of 

displeasure with certain aspects of the Executive Order and with various 

Exchange policies and regulations constituted Section 19(b)(6) violation.

In conclusion, the Assistant Secretary found no independent evidence 

of Union interference with, restraint, or coercion of employees in the 

exercise of rights assured by the Order.

500-836 0 - 73 - 12

UNITED STATES DEPARTMENT OF LABOR 

BEFORE THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS

ARMY AND AIR FORCE EXCHANGE SERVICE,

KEESLER CONSOLIDATED EXCHANGE 1/

Respondent

and

LOCAL 2670, AMERICAN FEDERATION OF 

GOVERNMENT EMPLOYEES, AFL-CIO 2/

Complainant

LOCAL 2670, AMERICAN FEDERATION OF 

GOVERNMENT EMPLOYEES, AFL-CIO

Respondent

and

ARMY AND AIR FORCE EXCHANGE SERVICE,

KEESLER CONSOLIDATED EXCHANGE

Complainant

DECISION AND ORDER

On June 9, 1971, Hearing Examiner Henry L. Segal issued his Report 

and Recommendations in the above-entitled proceeding, finding that the 

Respondents had not engaged in the unfair labor practices alleged in the 

complaints, and recommending that the complaints be dismissed in their 

entirety. Thereafter, the Army and Air Force Exchange Service, Keesler 

Consolidated Exchange 3/ filed exceptions with respect to the conclusions and

1/ The name of the Respondent appears as amended at the hearing.

2/ The name of the Complainant appears as amended at the hearing.

3/ Herein referred to as the Exchange*

A/SLMR No. 144

Case No. 41-1905 (CA)

Case No. 41-2130 (CB)

l

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recommendations relative to Case No. 41-2130 (CB) contained in the Hearing 

Examiner's Report and Recommendations, kj

The Assistant Secretary has reviewed the rulings of the Hearing 

Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the 

Hearing Examiner's Report and Recommendations and the entire record in the 

subject cases, including the exceptions, I hereby adopt the findings, conclusions, and recommendations of the Hearing Examiner as modified below. 5/

The complaint in Case No. 41-1905 (CA). filed by the Union against the 

Exchange, alleged violation of Section 19(a)(6) of Executive Order 11491 

based on the Exchange's (1) dilatory tactics in delaying the start of negotiations; (2) failure to empower its principal negotiator with authority to 

conclude an agreement; (3) failure to offer meaningful proposals on certain 

subjects of negotiation; (4) unilateral change in conditions of employment;

(5) reliance on certain "unlawful" Army and Air Force Exchange Service personnel regulations; and (6) "closed mind" at the bargaining table as evidenced by its overall method of negotiating. The complaint in Case No. 41- 

2130 (CB). filed by the Exchange against the Union, alleged violation of 

Sections 19(b)(1) and (6) of Executive Order 11491 based on the Union's

(1 ) failure to empower its principal negotiator and negotiating committee 

with authority to conclude an agreement; ^and (2) attitude of hostile contempt 

for the Executive Order, and pertinent Army and Air Force Exchange directives 

and regulations. Because these allegations raise important issues as to the 

bargaining obligations of agencies and labor organizations under Executive 

Order 11491, I feel it necessary to present, at the outset, a detailed review 

of the pertinent facts.

4/ Local 2670, American Federation of Government Employees, AFL-CIO, herein referred to as the Union, filed no exceptions to the Hearing 

Examiner's Report and Recommendations.

5/ During the course of the proceeding in these cases, a new Executive

Order, No. 11616, was issued on August 26, 1971, effective November 24, 

1971, amending portions of Executive Order 11491. Notwithstanding that 

the instant cases are governed by Executive Order 11491, it should be 

noted that Executive Order 11491, as amended, contains no relevant revisions of any Executive Order sections applicable herein. Therefore, 

the following discussion and conclusions may be regarded in terms of 

future applicability under Executive Order 11491, as amended.

- 2 -

Course of Negotiations

It is undisputed that the Union was granted formal recognition by the 

Exchange on July 12, 1968, under Executive Order 10988. Subsequently, the 

Union won a representation election held on June 20, 1969, and by letter 

dated July 3, 1969, was granted exclusive recognition for a unit of regular 

full-time and part-time hourly paid civilian employees at the Exchange, 

with various categories of personnel excluded. 6/ In October 1969, the 

Union submitted a proposed agreement to the Exchange. The Exchange indicated that it would meet with the Union for negotiations in November 1969, 

but this did not occur allegedly because of the necessity of transmitting 

the Union's proposals to the Army and Air Force Exchange Service headquarters in Dallas, Texas. 7/ Thereafter, on two other occasions, the 

Exchange scheduled and postponed the start of negotiations. In this connection, a December 1969, date was abandoned by the Exchange based on the 

"busy holiday season" and a January 1970, date was cancelled due to the 

Exchange's annual inventory. With an indication by the Union that it would 

have to do something about these delays, negotiations ultimately commenced 

on February 10, 1970.

This first session was devoted to the establishment of ground rules 

which included, among other things, a procedure for handling disputes and 

impasses, one part of which called for submission of disputed and impassed 

issues to the Federal Mediation and Conciliation Service and to the Federal 

Service Impasses Panel; and a procedure for reaching a completed agreement, 

with the Exchange and Union agreeing to each proposed article separately as 

discussed but withholding their final approval pending completion of the 

total agreement. 8/ The chief negotiator for the Exchange was an assistant 

general counsel for labor relations from the AAFES and the Union was represented principally by the Local’s president.

6/ In agreement with the Hearing Examiner, I find that the Exchange cannot 

now raise as a defense in this unfair labor practice proceeding the contention that the unit involved herein is inappropriate because it excludes military personnel employed during off duty hours.

7/ Herein referred to as the AAFES.

8/ While I note the nature of these "ground rules," the Hearing Examiner is 

correct in his comment that I am not required under the Order, nor do I 

think it would effectuate the policies of the Order, to interpret or 

police such side agreements absent evidence that they constitute independent violations of the Order. Cf., Report on a Decision of the 

Assistant Secretary. Report No. 20.

- 3 -

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The parties next met on February 11, 12, 13, 16, 17, and 18; and on 

March 16, 17, 18, and 19. The Union's October proposals formed the basis 

for discussion and the Exchange offered proposals only when it found a 

Union version to be unsatisfactory. The Exchange's counterproposals 

generally were submitted at the meeting in which the subject involved was 

considered, rather than in advance. As a result of this negotiating 

process, both sides agreed to approximately 17 agreement items. However, 

three items remained open: arbitration, hours of work, and promotion. With 

respect to these subjects, a Federal mediator was requested by the Union to 

conduct a meeting on April 23, 1970. After conferring with each side 

separately, he apparently suggested that the Exchange might try to come up 

with new counterproposals on these subjects. But at a session held the 

following day, April 24, the Exchange merely presented a slightly reworded 

clause concerning hours of work.

Thereafter, in a letter dated June 20, 1970, the Union charged the 

Exchange with violating Section 19(a)(6) of the Order by sending a principal negotiator to the bargaining table who was strictly governed by orders 

from the AAFES, thereby lacking authority to conclude an agreement. It 

alleged also that the Exchange's negotiator refused to bargain on the issues 

of arbitration, hours of work, and promotion. The Exchange did not reply 

to the charge until August 21, and during the interim the Union filed its 

complaint herein on August 12, 1970. At the Exchange's request,, a second 

Federal mediator was scheduled to attend, what turned out to be, a final 

negotiation meeting on October 2, 1970.

At the October 2 meeting, the Exchange submitted new or rewritten 

counterproposals on arbitration, hours of work, and promotion (a discussion 

of the substance of each is presented below), and the Exchange also raised, 

for the first time, an entirely new issue - dues checkoff. The record 

reveals that previously dues checkoff had not been a subject of bargaining 

because, as a result of the Union's formal recognition under Executive Order 

10988, a written agreement providing for the withholding of union dues was 

executed between the parties on July 11, 1968. 9J

9/ This "Memorandum of Understanding" made eligible for checkoff authorization, "all employees of /the Exchange/, except any unit whereby exclusive 

recognition has been granted," and it called for termination of an allotment under various circumstances affecting the individual authorizing 

employee and also "at the beginning of the first pay period after the 

Commander, Keesler AFB, Mississippi, determines that the Lodge is no 

longer eligible for formal recognition." Despite the fact that, by its 

terms, this checkoff arrangement could have been ended when the Union 

gained exclusive recognition on July 3, 1969, it was not, and authorized 

dues withholding has continued without interruption from 1968, to the 

present date. Thus, as of the start of negotiations in February 1970, 

and until about October 2, it appears the Union assumed dues checkoff 

was covered by the separate Memorandum of Understanding and would not be 

included in any negotiated agreement.

- 4 -

The issue with respect to dues checkoff developed as a result of the 

issuance by the AAFES on May 29, 1970, of an Exchange Service Bulletin 

No. 58, entitled "Voluntary Deduction of Labor Organization Dues," which was 

applicable to all of its exchange service components. The bulletin stated 

that its purpose was "to provide guidance to exchanges for the voluntary 

deduction of labor organization dues from the pay of AAFES employees who 

are members of organizations which have been granted formal or exclusive 

recognition." It stated further that: "Where a labor organization holds 

or obtains exclusive recognition, the dues withholding procedures, if any, 

will be part of the collective bargaining agreement and will terminate 

concurrently therewith. All agreements are subject to and become effective 

on the approval of the Chief, AAFES, They may not exceed two years in 

duration."

On October 2, the Exchange announced at the bargaining session that, 

in line with the new policy, existing checkoff procedures under the side 

agreement would have to be discontinued and any new arrangement would have 

to be included in the parties' negotiated agreement. A checkoff proposal 

consistent with the AAFES bulletin was presented, and this proposal, along 

with the Exchange's counterproposals on the three open items, was submitted to the Union as a "package deal," the Union being asked to accept 

all as written, or reject them. Strenuously objecting to this procedure 

and to the introduction of a checkoff issue into the negotiations, in light 

of the parties' existing side agreement, the Union rejected the four 

"packaged" contract clauses. In so doing, the Union's chief negotiator 

stated it would be necessary to contact the Union's national headquarters 

regarding the AAFES's new dues withholding policy before the Union could 

consent' to a different kind of checkoff arrangement.

Subsequent to October 2, 1970, the Union made no further reply to the 

Exchange's "package deal," nor did it request any further negotiation 

meetings. On or about January 20, 1971, the Exchange filed its complaint 

against the Union alleging violation of Sections 19(b)(1) and (6) of the 

Order.

Disputed Agreement Proposals

Arbitration. Early in the negotiations, the parties agreed to all but 

the last step of a grievance procedure. In this regard, the Union sought a 

provision for arbitration handled by an outside arbitrator, with costs 

equally divided between the parties. The Exchange, rejecting this, countered 

with a method whereby a hearing officer would be selected by the parties from 

a list of military or civilian personnel under the jurisdiction of the 

Installation Commander, but not Exchange employees, who would render an advisory opinion subject to final decision by the Commander. In support of its

- 5 -

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co u n t e r proposal, the E x c hange con t e n d e d that (a) the E x c hange had no budget 

pr o v i s i o n for p a y i n g outside arbitrators, (b) E x c hange profits w e r e d e s i g ­

n a t e d s p e c i f i c a l l y for the Central S e rvicemen's R e l i e f Fund, and (c) an 

out s i d e a r b i t r a t o r w o u l d n o t be as f a m iliar w i t h E x c hange operations and 

reg u l a t i o n s as w o u l d a p e r s o n con n e c t e d w i t h the A i r Force Base.

Beca u s e the U n i o n r e j e c t e d the E x c h a n g e ' s suggestion, this issue r e ­

m a i n e d at impasse until the E x c h a n g e subm i t t e d its "package deal" on 

O c t o b e r 2. I n c l u d e d i n that offer w a s the Unio n ' s arb i t r a t i o n proposal.

H o u r s o f w o r k . The r e c o r d reveals that the E x c hange cur r e n t l y 

sc hedules a m a j o r i t y o f its empl o y e e s to w o r k six days a w e e k for a total 

o f 4 0 hours. O v e rtime is c a l c u l a t e d on the basis of hours w o r k e d beyond 

the 4 0 - h o u r regu l a r wor k w e e k . The U n i o n p r o p o s e d that overtime be paid for 

all time e x c e e d i n g 40 h o u r s per w e e k or e i g h t hours p er day. But, w i t h 

r e s p e c t to overtime, the E x c hange n o t e d that a n A A F E S r e g u l a t i o n that,

"On l y time w o r k e d i n excess o f 4 0 h o urs d u r i n g the a d m i n istrative w o r k w e e k 

is c o n s i d e r e d o v e rtime w o r k , " w o u l d n ot p e r m i t i n s t i t u t i o n of the Union's 

proposal. No further d i s c u s s i o n of overtime w a s ente r t a i n e d d u ring negotiati ons.

As not e d above, the normal admin i s t r a t i v e w o r k w e e k for a m a j o r i t y of 

the E x c h a n g e ' s emp l o y e e s is s i x days a w e e k for a total of 40 hours. H o w ­

ever, the U n i o n c o n t e n d e d that all E x c hange e m ployees cou l d and should be 

a s s i g n e d to a 5 - d a y schedule, w i t h two c o n s ecutive days off. 10/ This 

also w a s d i smissed b y the Exchange on the basis of the following A A FES 

regulation; "The reg u l a r s c heduled w o r k w e e k will not e xceed 40 hours.

E x c e p t w h e r e i n c o n s i s t e n t w i t h operational needs, the hours scheduled will 

n o t e x c e e d 8 hours p er w o r k d a y and w i l l n o t be s cheduled for m o r e than 5 

days i n a n a d m i n istrative wor k w e e k . The regu l a r s cheduled w o r k w e e k will not 

incl u d e hou r s o n m o r e than 6 days or include m o r e than 10 hours o n any one 

w o r kday, e x c e p t d uring a n annual or other d i r ected i n v entory." The Exchange 

c o n t e n d e d its "operational needs'* d e mand that its facilities be o p e n at 

l ea s t s ix and, i n some cases, s e v e n days a w e e k , •t hereby r e ndering the 5-day 

w o r k w e e k v i r t u a l l y i mpossible w i t h its p r e s e n t employee complement. W i t h 

c o n t i n u e d U n i o n insistence to the contrary, the Exchange, i n c o n n e c t i o n w i t h 

a f e a s i b i l i t y survey, asked f a c ility m a n a g e r s to w r i t e o ut tentative 5-day 

schedules for their employees. 1 1 / Overall, the Exchan g e ' s s urvey a pparently

1 0/ The e v i d e n c e reveals that for m a n y years a f ew employees assigned to 

one E x c h a n g e outlet, the "Quick S h o p ,” h a d a 40-hour, 5-day w orkweek.

1 1 / The " Q uick Shop" m a n a g e r a p p a r e n t l y m i s u n d e r s t o o d that this w a s to be

o n p a p e r only, and, i n fact, i n s t i t u t e d the n e w w o r k w e e k for all "Quick 

Shop" employees. The E x c h a n g e repor t e d this change to the U n i o n at the 

n e x t n e g o t i a t i o n ses s i o n and offe r e d to r e instate the prior " Quick Shop" 

schedule. The Union, w h i l e obj e c t i n g to the unilateral action, conceded 

i t w o u l d be u n n e c e s s a r y to r e t u r n to the pri o r schedule.

i n dicated that a 5-day w o r k w e e k w o uld require m o r e regular part-time e m ­

ployees and, hence, some curr e n t full-time employees w o u l d have to w o r k 

o n a regular part-time basis. Because this w o u l d result i n a loss of pay 

to the affected employees, the U n ion rejected this Exchange solution.

The parties thereafter remained deadlocked o n both aspects of hours 

of work, w i t h the Exchange alleging u ltimately that the subjects of o v e r ­

time and w o r k w e e k scheduling w e r e n onnegotiable under Section 11(b) of the 

E xecutive Order.

P r o m o t i o n . Various aspects of p r omotion p olicy w e r e discussed during 

n e gotiations and agreement w a s obtained o n some matters, such as job p o s t ­

ing. However, impasse was reached o n two issues - promotional criteria 

and their procedural use. First, the U n ion sought to i m plement criteria 

for prom o t i o n through the a ssignment of a specific numerical w e i g h t to each. 

Second, the Uni o n objected to the use o f " v e teran status" as a criterion 

because it discriminates against women. Both of these subjects are r e ­

ferred to i n an AAFES regulation w h i c h provides that: "Employees are s e l e c ­

ted for prom o t i o n on the basis of performance, potential, length of AAFES 

service and vet e r a n status, i n that order of importance." I n this c o n n e c ­

tion, the Exchange objected to bargaining about either of the foregoing 

subjects, contending that the cited regula t i o n was controlling and una l t e r ­

able, and that, moreover, these aspects of p r omotion policy are not n e g o ­

tiable because of Sections 11(a), and 12(a) and (b)(2) of the Executive 

Order.

Notwiths t a n d i n g the Exchange's p o s ition in this regard, at the parties* 

O ctober 2 m e e t i n g it offered, as part of the "package," a n agreement p r o ­

v i s i o n w h i c h stated that, "Employees are selected for p r omotion on the 

basis of performance, potential, length of service and vet e r a n status in 

that order of importance. Whe r e performance, potential and length of AAFES 

service are equal, v e t e r a n status will be used only to break a tie. P e r ­

formance evaluations will be made by B ranch M anagers." W h e n this particular 

co n c e s s i o n as to "veteran status" w as made, the Exchange's chi e f negotiator 

a llegedly remarked that in doing this he m i g h t be exceeding his authority.

W i t h regard to all disputed agreement proposals, the record indicates 

that w h e n e v e r the parties' difficulties centered o n a particular AAFES 

regulation, the U n i o n frequently asked the Exchange to seek rulings and/or 

changes i n the regulations through its headquarters. The Exchange refused, 

p o i n t i n g o ut that it was the Union's o bligation to challenge regulations by 

approaching the AAFES, and then by appeal to the Federal Lab o r Relations 

Council 12/ pursuant to Sections 4(c)(2), and 11(c)(2), (3) and (4)(i) and 

(ii) of the Executive Order.

12/ H e r e i n referred to as the Council.

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Discussion and Findings

1. Overall, I agree with the Hearing Examiner's conclusion in 

Case No. 41-1905 (CA) that the Exchange fulfilled its duty to negotiate 

with the Union within the meaning of Section 19(a)(6) of the Order.

However, I disagree insofar as the Hearing Examiner's findings can 

be read to imply that, standing alone, dilatory conduct'by a party would 

not constitute a violation of Section 19(a)(6). In my view, Section 19(a)

(6) must be construed in connection with Section 11(a) of the Order, 13/ 

which specifies that there is a bargaining obligation on the part of both 

agencies and labor organizations to "meet at reasonable times" and to 

"confer in good faith." I do not consider that the Exchange's excuses for 

delaying the negotiations in this matter, such as the busy holiday season 

and annual inventory, adequately meet the Executive Order's collectivebargaining requirements. Moreover, in this regard, it appears that the 

Exchange's chief negotiation spokesman was not connected with the Exchange's 

day-to-day activities and, thus, he would not be involved in its seasonal 

rush or inventory. Clearly, the purposes of the Executive Order are not 

served best where, as here, a labor organization achieves exclusive recognition in July, submits a complete collective-bargaining agreement proposal 

to the Activity the first part of October, and then waits until the middle 

of February, ostensibly, for the Activity to decide that it is now "convenient" to negotiate. Labor organizations having exclusive representative 

status have a right under the Order to prompt consideration of their bargaining request. Absent evidence of more plausible reasons for this kind 

of delay, such conduct by the Exchange ordinarily would amount to a refusal to meet at reasonable times with the employees' duly recognized exclusive bargaining representative, and would result in a finding of violation of Section 19(a)(6) of the Order.

However, in the circumstances of this case, and noting particularly 

that prior to January 1971, the Union did not press for immediate negotiations, and once negotiations began they were transacted with sufficient 

diligence, I do not find a violation of Section 19(a)(6). Although the Union 

further contends that the Exchange's negotiating method of considering the

13/ Section 11(a) provides, in pertinent part, that: "An agency and a 

labor organization that has been accorded exclusive recognition, 

through appropriate representatives, shall meet at reasonable times 

and confer in good faith with respect to personnel policies and practices and matters affecting working conditions, so far as may be 

appropriate under applicable laws and regulations, including policies set forth in the Federal Personnel Manual, published agency 

policies and regulations, a national or other controlling agreement 

at a higher level in the agency, and this Order."

Union's proposed collective-bargaining agreement article by article and 

not submitting its own counterproposals in advance amounts to a refusal 

to confer in good faith, in my opinion, this is a legitimate bargaining 

approach. In addition, the record reveals that when difficulties did 

arise as to the substance of a particular Union-proposed contract provision, the Exchange never failed to provide, at a reasonable time, a 

substitute provision when such was considered possible* During the course 

of negotiations, then, all of the Union's bargaining agreement provisions 

were either accepted or rejected by the Exchange, or a substitute presented.

The Union argues that the instant negotiations were meaningless in 

that the Exchange's principal negotiator, an AAFES attorney, was not 

equipped with sufficient authority to conclude an agreement. This contention stems primarily from the fact that, at various points during the 

course of bargaining, the Exchange's spokesman indicated certain proposed 

agreement provisions could not be approved because they were contrary to 

AAFES regulations. On numerous occasions, he apparently stated that he was 

bound by these regulations in terms of what he could accede to at the bargaining table. Moreover, when the Union asked him to request possible 

changes in AAFES regulations from higher authorities, he refused to do so. 

Because some of the specific agreement provisions and regulations in dispute between the parties actually raise issues of the negotiability of the 

subject matter itself, and because discussion and concessions actually did 

take place as to other provisions, I reject the Union's contention that this 

conduct of the Exchange's principal negotiator violated the Order either in 

terms of his authority to bargain, or in terms of overall "good faith" 

bargaining.

As noted above, during the course of negotiations, the Exchange's 

spokesman took the position that the subject matter of certain Union proposals was contrary to AAFES regulations or the Order and, therefore, not 

negotiable. In my view, Section 11(c) of the Order 14/ provides the

14/ Section 11(c) provides that: "If, in connection with negotiations, an 

issue develops as to whether a proposal is contrary to law, regulation, 

controlling agreement, or this Order and therefore not negotiable, it 

shall be resolved as follows: (1) An issue which involves interpretation of a controlling agreement at a higher agency level is resolved 

under the procedures of the controlling agreement, or, if none, under 

agency regulations; (2) An issue other than as described in subparagraph

(1) of this paragraph which arises at a local level may be referred by 

either party to the head of the agency for determination; (3) An agency 

head's determination as to the interpretation of the agency's regulations 

with respect to a proposal is final; (4) A labor organization may appeal 

to the Council for a decision when--(i) it disagrees with an agency 

head's determination that a proposal would violate applicable law, 

regulation of appropriate authority outside the agency, or this Order, 

or (ii) it believes that an agency's regulations, as interpreted by 

the agency head, violate applicable law, regulation of appropriate 

authority outside the agency, or this Order.

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e x clusive m e t h o d for r e solving such a dispute. 1 5 / Thus, issues other 

than those involving the interp r e t a t i o n of a controlling a g reement at a 

h i g h e r a g e n c y level, m a y b r i n g i m m e diately into p l a y the processes of the 

Council as outlined in Sect i o n 4(c)(2), 1 6 / a nd Sect i o n ll(c)(4)(i) and 

(ii) o f the Order. U n der these latter provisions, n e g o t i a b i l i t y disputes 

i n connec t i o n w i t h agreement negot i a t i o n s are segregated into two c a t e ­

gories: (4)(i) - disagr e e m e n t w i t h a n a g e n c y h e a d’s dete r m i n a t i o n that a 

pr o posal w o u l d vio l a t e applicable law, r e g u l a t i o n of appropriate a uthority 

outside the agency, or this Order; and (4)(ii) - belief, b y a labor 

organization, that a n agency's r e g u l a t i o n , as interpreted b y the a gency 

h e a d , v i o l a t e s applic a b l e law, regula t i o n of a p p r opriate a u thority outside 

t he agency, or this Order.

U nd e r these S e c t i o n 11(c) procedures, the e xtent to w h i c h a particular 

a gr e e m e n t proposal o r agr e e m e n t subject m a y o r m a y n o t h a v e to be b a r ­

g a i n e d a b out w o u l d b e decided at the o utset b y the Council. Thereafter, 

u n d e r the Order's procedures, the Assi s t a n t Sec r e t a r y m a y b e requi r e d to 

de termine w h e t h e r the parties' b a r g a i n i n g in this regard has, in a ny way, 

v i o l a t e d Sec t i o n 19 of the Order. T he R eport and R e c ommendations of the 

Stu d y Committee, w h i c h p r e ceded the E x ecutive Order, sets out the policy 

a nd p r ocedure as follows: " A labor o r g a n i z a t i o n should b e p e rmitted to 

file a n u n f a i r labor practice com p l a i n t w h e n it b e l ieves that a m a n a g e m e n t 

official has b e e n arb i t r a r y or in err o r in e x cluding a m a t t e r f r o m n e g o t i a ­

tion w h i c h h as alre a d y b e e n d etermined to b e negoti a b l e through the 

processes d e scribed in ^ S e c t i o n ll(cj7." The Report and Recommendations 

c o ncluded that the Sect i o n 11(c) procedures are recommended in the hope 

t h a t they w i l l "give e x c l u s i v e l y recognized o rganizations a w a y of resolving, 

d uring negotiations, q u estions as to w h e t h e r a m a t t e r proposed f or n e g o t i a t i o n 

is in c o n flict w i t h law, applicable regulations o r a controlling agreement."

In these circumstances, I find as follows as to the four disputed 

s u b j e c t s in the instant proceeding:

A r b i t r a t i o n . T he r ecord reveals that the parties fully discussed 

v a r i o u s arb i t r a t i o n procedures, b u t failed to rea c h a g reement in the n e g o ­

tiat i o n sessions p r ior to the Oct o b e r 2 meeting. A t that time, the Exchange 

acc e d e d to the Union's arbi t r a t i o n demand, a l t h o u g h its a g reement in this 

r e s p e c t w a s t h e n tied to the Exchange's "package deal" as to dues checkoff.

15/ See R e p o r t o n a D e c i s i o n of the A s s i s t a n t Secretary. R eport No. 2 6 . in 

w h i c h I found that the intent of Sect i o n 19(a)(6) of the Ord e r i s t o 

provide a labor o r g a n i z a t i o n a n opp o r t u n i t y to file a c o mplaint w h e n 

it b e l ieves that m a n a g e m e n t h as b e e n a r b i t r a r y o r in err o r in excluding 

a m a t t e r f r o m n e g o t i a t i o n w h i c h has alr e a d y b e e n determined to b e n e g o ­

tiable through the procedures set for t h in Sect i o n 11(c) of the Order.

1 6 / S e c t i o n 4(c)(2) provides: "The Coun c i l m a y consider, subject to its 

r egu l a t i o n s — (2) appeals o n n e g o t i a b i l i t y issues as provided in 

S e c t i o n 11(c) of this Order."

- 10 -

Under these circumstances, i n a g reement w i t h the Hear i n g Examiner, I c o n ­

clude that the Exchange's b argaining o n arbitration w a s n o t violative of 

Section 19(a)(6) of the Order. 17/

Hours of w o r k . As not e d above, the disputed hours of w o r k issue i n ­

v o lved two aspects. First, the Exchange refused to discuss, outright, 

the Union's proposal to change the basis for c a l culating overtime pay b e ­

cause of a con f l i c t i n g AAFES regulation.

I n accord w i t h the Exchange's p o s ition i n this respect, i . e . , that 

the basis for calculating overtime is n o n n e g otiable because this subject 

is controlled b y an existing AAF E S regulation, I find that the 

Section 11(c)(2) procedure is applicable. Failing a s a tisfactory answer 

from the a gency head the U n ion has available an appeal to the Council 

under Section ll(c)(4)(i) or (ii), as m a y be appropriate. This follows 

from the fact that the Exchange's refusal to bargain about the subject of 

overtime w a s based on a belief that, under the O r d e r , the Exchange's o v e r ­

time regulation could properly be used to eliminate any negotiations on 

the subject. Because this is a n e g o t i ability q u e stion w h i c h has n o t been 

decided b y the Council prior to the filing of the unfair labor practice 

c o m p l a i n t herein, I conclude that this a spect of the instant complaint 

should be dismissed.

The second p a r t of the hours of w o r k issue involved the Exchange's 

refusal to agree to the Union's proposal to change the r egularly scheduled 

workweek. Despite the fact that the Exchange contended that this subject 

w as n onnegotiable under Sect i o n 11(b) o f the Order, it not only discussed 

the Union's proposal, but also e ven-went so far as to che c k into the p r a c ­

tical a p p l ication of such a change w h e n applied to its cur r e n t employee 

complement. Because the results of this scheduling survey called for more 

r egular part-time employees and a reduction i n the n u mber of regular fulltime employees, and hence, w a s unacceptable to the Union, an impasse 

resulted.

N o t w i t h standing the Exchange's will i n g n e s s to bar g a i n about some e l e ­

men t s o f w o r k w e e k scheduling, I do n o t v i e w this as a w a i v e r of its fundamental posit i o n that the subject itself is n onnegotiable because it is 

governed b y an e x i sting AAFES regulation. Therefore, as in the overtime

17/ Nor does i t appear that the U n i o n could pursue Section 11(c) procedures 

on the subject of arbitration for there is n o evidence of a n Exchange 

conten t i o n that U n i o n proposals concerning arbitration w e r e n o n n e g o ­

tiable because they w e r e c o n trary to law, regulation, controlling 

agreement, or the Order.

- l i ­

n e

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situation discussed above, the "Section 11(c)(2) - 11(c)(4) procedures" 

should have been followed. Accordingly, as this is a negotiability question which has not been decided by the Council prior to the filing of the 

unfair labor practice complaint herein, I conclude that this aspect of 

the instant complaint should be dismissed. 18/

Promotion. The Exchange's ultimate position as to the Union's promotion proposal was that promotion is a nonnegotiable subject under the 

Executive Order, citing, in particular, Section 12(a) and (b)(2). It contended also that an AAFES regulation governed promotion. The Exchange, 

however, did discuss the Union's promotion proposal and, as in the case of 

arbitration, it granted a portion of the Union's demand after the unfair 

labor practice charge in this proceeding was filed.

Again, notwithstanding this limited discussion and concession, because the subject of promotion herein also raises an issue of negotiability 

based on an existing agency regulation, it is a matter to be processed 

under the "Section 11(c)(2) - 11(c)(4) procedures." Accordingly, for 

reasons discussed above, the unfair labor practice complaint in this respect 

must be dismissed.

Dues checkoff. This subject was not raised until the final negotiation 

session when it was brought to the bargaining table by the Exchange in the 

form of an announcement of a new AAFES checkoff policy that any checkoff 

arrangement must be included in the negotiated agreement. Included in the 

wording of that policy is a statement which also, in effect, limits the 

duration of any agreed-to bargaining agreement to two years. Both of these 

topics, as interpreted and treated by the Exchange to dispense with any discussion of checkoff, quite obviously involve issues of negotiability, and 

their proper resolution is through the "Section 11(c)(2) - 11(c)(4) procedures" discussed above.

Accordingly, in agreement with the Hearing Examiner, no unfair labor 

practice complaint on these matters may be entertained by the Assistant 

Secretary at this time.

18/ The record clearly shows that the change in the workweek for all 

"Quick Shop" employees resulted from an apparent misunderstanding 

between the Exchange and the "Quick Shop" manager. In view of the 

Exchange's immediate notification of this fact to the Union and 

its offer to restore the prior workweek schedule, all coupled with 

the Union's concession that this was unnecessary, I conclude that 

further proceedings on this matter are unwarranted.

- 12 -

2. The Hearing Examiner concluded in Case No. 41-2130 (CB). that 

the Union did not refuse to negotiate in violation of Section 19(b)(6) as 

the evidence did not support the contentions that the Union denied proper 

authority to its chief negotiator and negotiation committee members for 

consummating a collective-bargaining agreement. He found also that the 

Union did not violate Section 19(b)(6) based on the expressions of Its 

negotiators' displeasure with certain aspects of the Executive Order and 

with various Exchange policies and regulations. I agree.

The evidence is clear that all members of the Union's negotiation 

committee possessed the requisite power to agree to a final negotiated 

agreement and that any expressions by them of a need to refer a matter, 

such as dues checkoff, to some higher union authority merely reflected 

their desire for guidance in terms of the labor organization's national 

policy. Such conduct was comparable to that of the Exchange negotiation 

committee members who also expressed the need to keep their bargaining 

table agreements in conformity with AAFES policies and regulations. In 

neither instance is this, standing alone, a basis for concluding there was 

a lack of bargaining authority at the installation level. The evidence 

also is clear that Union committee members, although vocally expressive of 

their lack of sympathy with portions of the Executive Order, as well as 

with certain Exchange policies and regulations, were merely expressing 

their own point-of-view, and were not, thereby, refusing to negotiate within the meaning of Section 19(b)(6).

Therefore, I adopt the Hearing Examiner's recommendation in Case No. 

41-2130 (CB) that the Section 19(b)(6) allegation in the complaint be 

dismissed.

Although the Hearing Examiner made no specific reference to the 

Section 19(b)(1) allegation in the complaint herein, simply recommending 

dismissal of Case No. 41-2130 (CB) in its entirety, I find no independent 

evidence of Union interference with, restraint, or coercion of employees 

in the exercise of rights assured by this Order.

Accordingly, I conclude that the Section 19(b)(1) allegation in 

Case No. 41-2130 (CB) also should be dismissed.

ORDER

Pursuant to Section 6(a)(4) of Executive Order 11491 and 

Section 203.25(b) of the Regulations, the Assistant Secretary of Labor 

for Labor-Management Relations hereby orders that the complaints in 

Case Nos. 41-1905 (CA)

Dated, Washington, D. C. 

March 28, 1972

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November 4, 1976

UNITED STATES DEPARTMENT OF LABOR

ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS

SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY

PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED

DEPARTMENT OF DEFENSE,

AIR NATIONAL GUARD,

TEXAS AIR NATIONAL GUARD,

CAMP MABRY, AUSTIN, TEXAS

A/SLMR No. 738__________________________ _________________________ _

This case involved an unfair labor practice complaint filed by the

Texas Air National Guard AFGE Council of Locals (AFGE), alleging essentially that the Respondent violated Section 19(a)(1) and (6) of the

Order by issuing a memorandum prohibiting the consumption of alcoholic

beverages on "Air Guard" facilities without first meeting and conferring

with the AFGE, the exclusive representative of the civilian air technicians.

The Administrative Law Judge stated that "...a matter affecting

working conditions within the meaning of Section 11(a) of the Order

encompasses those perquisites, practices or privileges enjoyed by virtue

of the employment relationship" and found that the use of alcoholic

beverages at parties by the employees on "Air Guard" facilities was such

an incident of employment constituting a working condition within the

meaning of Section 11(a) which could not be changed unilaterally without

proper notice to the exclusive representative and without affording it

an opportunity to bargain on the subject.

Contrary to the Administrative Law Judge, the Assistant Secretary

concluded that agency management’s control of the consumption of alcoholic beverages on government facilities does not fall within the ambit

of Section 11(a) of the Order. In this regard, he found that Section

11(a) describes limited areas of negotiation but does not embrace every

issue of interest to agencies and exclusive representatives which

indirectly may affect employees. Rather, Section 11(a) encompasses

matters which materially affect, and have a substantial impact on,

personnel policies, practices and general working conditions. The

Assistant Secretary stated that, in his view, a restriction on the

consumption of alcohol on <x government facility did not reach such a

level of importance.

Accordingly, the Assistant Secretary ordered that the complaint be

dismissed in its entirety.

A/SLMR No. 738

UNITED STATES DEPARTMENT OF LABOR

BEFORE THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS

DEPARTMENT OF DEFENSE, AIR NATIONAL GUARD,

TEXAS AIR NATIONAL GUARD, CAMP MABRY,

AUSTIN, TEXAS

Respondent

and Case No. 63-5604(CA)

TEXAS AIR NATIONAL GUARD AFGE COUNCIL

OF LOCALS

Complainant

DECISION AND ORDER

On April 9, 1976, Administrative Law Judge Salvatore J. Arrigo

issued his Recommended Decision and Order in the above entitled proceeding, finding that the Respondent had engaged in certain unfair labor

practices and recommending that it take certain affirmative actions as

set forth in the attached Administrative Law Judge's Recommended Decision

and Order. Thereafter, the Respondent filed exceptions and a supporting

brief with respect to the Administrative Law Judge's Recommended Decision

and Order.

The Assistant Secretary has reviewed the rulings of the Administrative

Law Judge made at the hearing and finds that no prejudicial error was

committed. The rulings are hereby affirmed. Upon consideration of the

Administrative Law Judge's Recommended Decision and Order and the entire

record in the subject case, including the Respondent's exceptions and

supporting brief, I hereby adopt the findings, conclusions and recommendations of the Administrative Law Judge, only to the extent consistent

herewith.

The complaint in the instant case alleges, in effect, that the

Respondent violated Section 19(a)(1) and (6) of the Order by issuing a

memorandum prohibiting the consumption of alcoholic beverages on "Air

Guard" facilities without first meeting and conferring with the Complainant, which is the exclusive representative of all civilian air

technicians of the Texas Air National Guard. In his Recommended Decision

and Order, the Administrative Law Judge stated that "...a matter affecting working conditions within the meaning of Section 11(a) of the Order

encompasses those perquisites, practices or privileges enjoyed by

591

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virtue of the employment relationship. The use of alcoholic beverages

at parties by unit employees at Hensley Field was such an incident of

employment." Finding that the use of alcoholic beverages at parties held

at the Respondent’s facility constituted a working condition within the

meaning of Section 11(a) of the Order which could not be changed unilaterally without proper notice to the exclusive representative affording it the opportunity to bargain on the change, the Administrative

Law Judge concluded that the directive issued on August 30, 1974, 1/ by

the Respondent without notice to the Complainant and without affording it

the opportunity to negotiate was violative of Section 19(a)(1) and (6)

of the Order.

Under the particular circumstances of this case, I do not agree

with the findings of the Administrative Law Judge. In my view, agency

management’s control of the consumption of alcoholic beverages at

government facilities does not fall within the ambit of those personnel

policies and practices and matters affecting working conditions which

are contemplated by Section 11(a) of the Order. Section 11(a) describes

the limited areas which are subject to the bargaining obligation on the

part of agencies and exclusive representatives. In my view, it is not

intended to embrace every issue which is of interest to agencies and

exclusive representatives and which indirectly may affect employees.

Rather, Section 11(a) encompasses those matters which materially affect,

and have a substantial impact on, personnel policies, practices, and

general working conditions. I do not consider a restriction on the

consumption of alcohol on a government facility to reach such a level of

importance. 2/

Accordingly, in view of the foregoing, I conclude that the Respondent

owed no obligation under Section 11(a) of the Order to notify, and, upon

request, to meet and confer with the Complainant prior to the issuance

of its memorandum concerning the consumption of alcohol, and that,

therefore, its conduct herein was not in derogation of the parties*

exclusive bargaining relationship. Hence, I shall order that the instant

complaint be dismissed in its entirety.

ORDER

IT IS HEREBY ORDERED that the complaint in Case No. 63-5604(CA) be,

and it hereby is, dismissed.

Dated, Washington, D. C.

November 4, 1976

Bernard E. DeLury, AssigJ^iit^^ecretary of

Labor for Labor-Manage35ent Relations

1/ This directive reads as follows;

SUBJECT: Alcoholic Beverages

TO: Each Division

The verbal policy of the Adjutant General’s Department

is furnished for compliance by all Air Guard personnel at

this station: ALCOHOLIC BEVERAGES WILL NOT BE SERVED

OR CONSUMED BY AIR GUARD PERSONNEL ON AIR GUARD FACILITIES

Signed:

FOR THE COMMANDER

Newton T. Williams, Major, TexANG

Administrative Officer

It is noted that the agency memorandum herein did not prohibit or

otherwise affect the practice of holding parties at Air Guard facilities for promotions, retirements, or other reasons. -3-

- 2-

592

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