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NATIONAL TREASURY EMPLES. UNION v. DEVINE

June 29, 1984

NATIONAL TREASURY EMPLOYEES UNION, Plaintiff,
v.
DONALD J. DEVINE, Director, Office of Personnel Management, Defendant



The opinion of the court was delivered by: RICHEY

 BACKGROUND

 Although this case involves a challenge only to OPM's statutory authority to advise federal agencies on labor-management relations, *fn1" a brief review of the substantive dispute dividing plaintiff and defendant helps to clarify the key issue. On November 29, 1983, the United States Supreme Court reversed the FLRA by deciding that federal agencies are not required to reimburse the travel expenses or per diem allowances of employees representing their union in collective bargaining with the agencies. Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 104 S. Ct. 439, 78 L. Ed. 2d 195 (1983) ("BATF"). In a footnote, the Court wrote:

 
Our conclusion that federal agencies may not be required under § 7131(a) to pay the travel expenses and per diem allowances of union negotiators does not, of course, preclude an agency from making such payments upon a determination that they serve the convenience of the agency or are otherwise in the primary interest of the government. . . . Furthermore, unions may presumably negotiate for such payments in collective bargaining as they do in the private sector. [Citations omitted.]

 Id. at 449 n.17.

 Despite the Supreme Court's "presumption" concerning negotiability, OPM issued FPM Letter 711-162 on January 19, 1984, in response to BATF, informing federal agencies that employee negotiators are generally not entitled to travel expenses or per diem allowances and that agency reimbursement decisions are "a matter outside the scope of [collective] bargaining . . .," id. at P 7(d). The parties agree that FPM Letter 711-162 is "precatory and will not bind Federal agencies in the manner of a regulation." (Defendant's Statement of Material Facts As To Which There Is No Genuine Dispute, para. 4.) Beyond that, however, they disagree as to its precise effect. Defendant elaborates his view by characterizing the letter as "nothing more than guidance to federal agencies reminding them of their duties under two federal laws." (Defendant's Memorandum in Support of Summary Judgment Motion, at 26.) Plaintiff, in contrast, argues that while FPM Letter 711-162 is not a "regulation," it is nevertheless "designed to have, and will inevitably have, substantial impact on agency positions." (Plaintiff's Reply Brief, at 2.) Further, plaintiff contends that OPM is not statutorily entitled to exert such influence over collective bargaining by federal agencies.

 I. PLAINTIFF IS NOT COLLATERALLY ESTOPPED FROM BRINGING THIS SUIT

 II. OPM'S AUTHORITY EXTENDS TO ISSUING GUIDELINES TO FEDERAL AGENCIES ON THE SCOPE OF COLLECTIVE BARGAINING

 The parties disagree on the allocation of responsibility between OPM and the FLRA since enactment of the CSRA, 5 U.S.C. § 7101 et seq., in 1978. *fn2" Plaintiff argues that under Title VII of the CSRA, the FLRA was given sole authority to advise federal agencies concerning their collective bargaining duties. Defendant takes the position that it retains the traditional advisory role of the Civil Service Commission ("CSC"). The court finds that defendant's position is supported both by the statutory language and the legislative history of the CSRA, and by a subsequent executive order. Consequently, the court concludes that OPM may issue guidance such as FPM Letter 711-162.

 A. The CSRA does not preclude OPM from advising federal agencies

 Under the CSRA, OPM assumed certain responsibilities formerly vested with the CSC, while other CSC functions were assigned to the Merit Systems Protection Board. See H.R. Rep. No. 1403, 95th Cong., 2d Sess. 4 (1978); S. Rep. No. 969, 95th Cong, 2d Sess. 7-8 (1978). The legislation also created the FLRA, 5 U.S.C. § 7104 et seq. In addition to its responsibility for adjudicating federal labor-management disputes, see § 7105(a)(2), the CSRA provides that the FLRA "shall provide leadership in establishing policies and guidance" concerning labor-management relations, § 7105(a)(1). Contrary to NTEU's view, this language does not confer exclusive authority for issuing guidance to the FLRA. Rather, use of the word "leadership" reflects Congress' understanding that other entities would be providing guidance of lesser prominence. See generally NTEU v. FLRA, 223 U.S. App. D.C. 364, 691 F.2d 553 (D.C. Cir. 1982).

 The statute has no particularized language spelling out OPM's role as an advisor to federal agencies, except §§ 7105(i) and 7118(b), which provide that the FLRA may request advisory opinions from OPM on the proper interpretation of its rules, regulations, and policies. The court is not persuaded that this lack of a specific grant of broader authority means OPM was denied a greater advisory role, given the CSC's traditional function and the CSRA's explicit instructions that many former policies survive enactment of the new legislation. See § 7135(b). Plaintiff's reliance on Congress' purported repudiation of the Senate version of the CSRA -- which clearly contemplated an advisory role for OPM, see S. Rep. No. 95-969, 95th Cong., 2d Sess. 99 (1978) -- is unavailing in light of the whole legislative history. Particularly instructive is the debate over the two versions of the bill, the Collins Amendment (i.e., the Senate version) and the Udall Amendment (i.e., ...


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