1984). In that case, Judge Hogan decided that OPM had the authority to issue guidelines on prohibited and permissive subjects of bargaining, as proposed in a notice in the Federal Register. 48 Fed. Reg. 32,276 (July 14, 1983). NTEU argues that the doctrine of collateral estoppel does not apply because this case poses "materially different issues" than the case before Judge Hogan. Because the two suits involve different, albeit similar, OPM documents, the court concludes that NTEU is not collaterally estopped from pursuing this action and therefore proceeds to address the merits of this case.
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.
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., the one that became law), in which the sponsors did not mention any difference in the advisory functions of OPM and the FLRA. See 124 Cong. Rec. 29167, 29173 (1978) (statement of Rep. Collins); 124 Cong. Rec. 29182 (statement of Rep. Udall).
B. OPM is authorized to issue labor-management guidelines by Executive Order
The CSRA provides that existing executive orders are to remain in effect unless revoked by the President or specifically superseded. 5 U.S.C. § 7135. After the enactment of the CSRA, Executive Order 12107 substituted "OPM" for "CSC" in Section 25 of Executive Order 11491, the basis for OPM's claim that it inherited the CSC's advisory role:
(a) The Office of Personnel Management, in conjunction with the Office of Management and Budget, shall establish and maintain a program for the policy guidance of agencies on labor-management relations in the Federal service and shall periodically review the implementation of these policies. The Office of Personnel Management shall be responsible for the day-to-day policy guidance under that program. They also shall continuously review the operation of the Federal labor-management relations program to assist in assuring adherence to its provisions and merit system requirements; implement technical advice and information programs for the agencies; assist in the development of programs for training agency personnel and management officials in labor-management relations; and from time to time, report to the Authority on the state of the program with any recommendations for its improvement. (b) The Office of Personnel Management shall develop programs for the collection and dissemination of information appropriate to the needs of agencies, organizations and the public.
44 Fed. Reg. 1055, 1056 (Dec. 28, 1978).
In the face of this clear authority, NTEU argues that Title VII of the CSRA clearly supersedes Section 25 of Executive Order 11491. As discussed above, the court finds no such contradiction between Title VII and OPM's advisory function. Title VII does create the FLRA as an independent adjudicatory entity, mandated to "provide leadership in establishing policies and guidance," § 7105(a), but this is not inconsistent with an advisory role for OPM on labor-management relations. The court is similarly unpersuaded by NTEU's claim that the substitution of "OPM" for "CSC" was only a "general housekeeping order," and should accordingly be given little consideration. This court must presume that in modifying an executive order, the president means what he says.
III. OPM'S AUTHORITY TO ISSUE GUIDANCE DOES NOT DEPEND ON THE SUBSTANCE OF THE ADVICE GIVEN
Plaintiff objects to the substance of the advice contained in FPM Letter 711-162 and the unequivocal language OPM uses to express its views. Specifically, NTEU asserts that these factors distinguish this case from that considered by Judge Hogan in NTEU v. Devine, No. 83-0983 (D.D.C. Nov. 25, 1983), appeal docketed, No. 84-5057 (D.C. Cir. Jan. 27, 1984), and that the distinctions warrant a different outcome.
The court agrees with plaintiff that the two OPM pronouncements do vary in the force of their language. In contrast to the earlier document, Letter 711-162 is more unqualified and declarative, and does not contain the caveat on its face that agency heads retain discretion on negotiability questions. Nevertheless, plaintiff and defendant agree that the letter is "precatory" and non-binding. (Statement of Material Facts, para. 4.) Because OPM is statutorily empowered to advise federal agencies, this court will not attempt to police the manner in which it chooses to express its opinions.
Plaintiff also protests that Letter 711-162 differs from OPM's earlier advice because it takes issue with the Supreme Court's view on the negotiability of travel expenses and per diem allowances, as expressed in BATF, 104 S. Ct. at 449 n.17. There are two flaws in this argument, however. First, the Supreme Court merely noted in dictum that "unions may presumably negotiate for such payments in collective bargaining" (emphasis added); that issue was not before the Court and it was not ruled upon. Furthermore, OPM's earlier pronouncement, the basis for Judge Hogan's opinion, also took some firm positions on debatable issues of law. See 48 Fed. Reg. 32,276 (July 14, 1983), part (j). Like Judge Hogan, this court finds that such instructions are within OPM's advisory authority. See NTEU v. Devine, No. 83-0983, slip op. at 16.
The court finds that OPM is statutorily empowered to advise federal agencies on matters relating to labor-management relations. If its instructions are incorrect, they may be subject to challenge when adopted by the management of a particular agency during bargaining and brought to the attention of the FLRA. Accordingly, the court will enter an order of even date herewith granting defendant's motion for summary judgment and denying plaintiff's motion for summary judgment.
For the reasons stated in the accompanying opinion of even date herewith, it is by the court this 29 day of June, 1984,
ORDERED that defendant's motion for summary judgment is granted; and it is
FURTHER ORDERED that plaintiff's motion for summary judgment is denied; and it is
FURTHER ORDERED that this case shall stand dismissed from the docket of this court.