ORAL ARGUMENT SCHEDULED FOR OCTOBER 10, 2001
No. 00-1486
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
PUERTO RICO ARMY CHAPTER,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JUDITH A. HAGLEY
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
ORAL ARGUMENT SCHEDULED FOR OCTOBER 10, 2001
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties and Amici
Appearing below in the administrative proceeding before the Federal
Labor Relations Authority (Authority) were the Association of Civilian
Technicians, Puerto Rico Army Chapter (Union) and the U.S. Department of
Defense, National Guard Bureau, Puerto Rico National Guard, San Juan,
Puerto Rico (Agency). The Union is the petitioner in this court
proceeding; the Authority is the respondent.
B. Ruling Under Review
The ruling under review in this case is the Authority's Decision and
Order on Negotiability Issues in ACT, Puerto Rico Army Chapter, Case
No. 0-NG-2519, decision issued on July 21, 2000, reported at 56 F.L.R.A.
(No. 77) 493, Order denying Motion for Reconsideration issued September 29, 2000,
reported at 56 F.L.R.A. (No. 135) 807.
C. Related Cases
This case has not previously been before this Court or any other court.
Counsel for the Authority are unaware of any cases pending before this
Court which are related to this case within the meaning of Local Rule
28(a)(1)(C).
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS 2
A. Background 2
B. The Authority's Decision 3
STANDARD OF REVIEW 4
SUMMARY OF ARGUMENT 5
ARGUMENT 5
THE AUTHORITY PROPERLY DETERMINED THAT A
PROVISION THAT SEEKS REIMBURSEMENT FOR PURELY
PERSONAL TRAVEL EXPENSES IS INCONSISTENT WITH
LAW WHEN THE FEDERAL STATUTE GOVERNING
REIMBURSEMENT OF TRAVEL EXPENSES LIMITS SUCH
PAYMENTS TO "OFFICIAL BUSINESS" 5
A. The Travel Expenses Act Limits Reimbursement for Travel Expenses to Those
Incurred While on Official Business 6
B. The Union's Arguments Lack Support and Are
Irrelevant 7
CONCLUSION 11
CERTIFICATION PURSUANT TO FRAP RULE 32 AND
CIRCUIT RULE 32 12
ADDENDUM
Relevant portions of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999) and other
pertinent statutory provisions A-1
TABLE OF AUTHORITIES
AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 4
* Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89 (1983) 6, 8
* Dep't of the Treasury v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988) 6, 7, 8
Dep't of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988) 5
FLRA v. Dep't of Justice, INS, 994 F.2d 868 (D.C. Cir. 1993) 10
Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) 4
NTEU v. FLRA, 30 F.3d 1510 (D.C. Cir. 1994) 4
OPM v. Richmond, 496 U.S. 414 (1990) 8
Overseas Educ. Ass'n v. FLRA, 827 F.2d 814 (D.C. Cir. 1987) 4
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
AFGE, Local 3529, 15 F.L.R.A. 403 (1984) 9
Dep't of the Navy, 34 F.L.R.A. 635 (1990) 9
NFFE, 24 F.L.R.A. 430 (1986) 9
NTEU, 26 F.L.R.A. 497 (1987), pet. for review granted on other grounds,
Dep't of the Treasury, BATF v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) 9
United Power Trades Org., 48 F.L.R.A. 291 (1993), aff'd mem.,
No. 93-70827 (9th Cir. May 23, 1995) 8, 9
*Authorities upon which we chiefly rely are marked by asterisks.
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999) 1
5 U.S.C. § 7105(a)(2)(E) 1, 2
5 U.S.C. § 7106(a) 10
5 U.S.C. § 7106(a)(1) 10
5 U.S.C. § 7106(b)(3) 10
5 U.S.C. § 7117(a) 8
5 U.S.C. § 7117(a)(1) 4
5 U.S.C. § 7117(c) 2
5 U.S.C. § 7123(a) 1, 2
5 U.S.C. § 7123(c) 4
5 U.S.C. § 706(2)(A) 4
Travel Expenses Act, 5 U.S.C. §§ 5701-5756 (1994 & Supp. V 1999) 3
§ 5702(a) 6
CODE OF FEDERAL REGULATIONS
41 C.F.R. §§ 301-304 3
MISCELLANEOUS
Dep't of the Navy, Comp. Gen. Decision B-249,061 (May 17, 1993) 9
General Accounting Office, Principles of Federal Appropriations Law
(2d ed. 1991) 6
GLOSSARY
Agency Puerto Rico National Guard
App. Appendix
Authority Federal Labor Relations Authority
BATF v. FLRA Bureau of Alcohol, Tobacco & Firearms v. FLRA,
464 U.S. 89 (1983)
Pet. Br. Petitioner Brief
Statute Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999)
Treasury v. FLRA Dep't of the Treasury v. FLRA, 836 F.2d 1381 (D.C. Cir.
1988)
Union Association of Civilian Technicians, Puerto Rico Army
Chapter
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
PUERTO RICO ARMY CHAPTER,
Petitioner
v. No. 00-1486
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
SERVICE LIST
I certify that copies of the Brief for the Federal Labor Relations Authority
have been served this day, by mail, upon the following:
Daniel M. Schember
Gaffney & Schember, P.C.
1666 Connecticut Ave., NW,
Suite 225
Washington, D.C. 20009
Thelma Brown
Paralegal Specialist
July 25, 2001
TABLE OF CONTENTS
1. 5 U.S.C. § 7105(a)(2)(G) A-1
2. 5 U.S.C. § 7106(a)(1), (b)(3) A-2
3. 5 U.S.C. § 7117(a)(1), (c) A-3
4. 5 U.S.C. § 7123(a), (c) A-5
5. 5 U.S.C. § 5702 A-8§ 7105. Powers and duties of the Authority
* * * * * * *
(a)(2) The Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-
* * * * * * *
(E) resolve issues relating to the duty to bargain in good faith under
section 7117(c) of this title;
* * * * * * *
§ 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this chapter shall
affect the authority of any management official of any agency-
(1) to determine the mission, budget, organization, number of employees, and
internal security practices of the agency; and
* * * * * * *
(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating-
* * * * * * *
(3) appropriate arrangements for employees adversely affected by the
exercise of any authority under this section by such management officials.
§ 7117. Duty to bargain in good faith; compelling need; duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in
good faith shall, to the extent not inconsistent with any Federal law or any
Government-wide rule or regulation, extend to matters which are the subject
of any rule or regulation only if the rule or regulation is not a
Government-wide rule or regulation.
* * * * * * *
(c)(1) Except in any case to which subsection (b) of this section applies,
if an agency involved in collective bargaining with an exclusive
representative alleges that the duty to bargain in good faith does not
extend to any matter, the exclusive representative may appeal the allegation
to the Authority in accordance with the provisions of this subsection.
(2) The exclusive representative may, on or before the 15th day after the
date on which the agency first makes the allegation referred to in paragraph
(1) of this subsection, institute an appeal under this subsection by-
(A) filing a petition with the Authority; and
(B) furnishing a copy of the petition to the head of the agency.
(3) On or before the 30th day after the date of the receipt by the head of
the agency of the copy of the petition under paragraph (2)(B) of this
subsection, the agency shall-
(A) file with the Authority a statement-
(i) withdrawing the allegation; or
(ii) setting forth in full its reasons supporting the allegation; and
(B) furnish a copy of such statement to the exclusive representative.
(4) On or before the 15th day after the date of the receipt by the exclusive
representative of a copy of a statement under paragraph (3)(B) of this
subsection, the exclusive representative shall file with the Authority its
response to the statement.
(5) A hearing may be held, in the discretion of the Authority, before a
determination is made under this subsection. If a hearing is held, it shall
not include the General Counsel as a party.
(6) The Authority shall expedite proceedings under this subsection to the
extent practicable and shall issue to the exclusive representative and to
the agency a written decision on the allegation and specific reasons
therefor at the earliest practicable date.
* * * * * * * § 7123. 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.
* * * * * * *
(c) Upon the filing of a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for enforcement, the
Authority shall file in the court the record in the proceedings, as provided
in section 2112 of title 28. Upon the filing of the petition, the court
shall cause notice thereof to be served to the parties involved, and
thereupon shall have jurisdiction of the proceeding and of the question
determined therein and may grant any temporary relief (including a temporary
restraining order) it considers just and proper, and may make and enter a
decree affirming and enforcing, modifying and enforcing as so modified, or
setting aside in whole or in part the order of the Authority. The filing of
a petition under subsection (a) or (b) of this section shall not operate as
a stay of the Authority's order unless the court specifically orders the
stay. Review of the Authority's order shall be on the record in accordance
with section 706 of this title. No objection that has not been urged before
the Authority, or its designee, shall be considered by the court, unless the
failure or neglect to urge the objection is excused because of extraordinary
circumstances. The findings of the Authority with respect to questions of
fact, if supported by substantial evidence on the record considered as a
whole, shall be conclusive. If any person applies to the court for leave to
adduce additional evidence and shows to the satisfaction of the court that
the additional evidence is material and that there were reasonable grounds
for the failure to adduce the evidence in the hearing before the Authority,
or its designee, the court may order the additional evidence to be taken
before the Authority, or its designee, and to be made a part of the record.
The Authority may modify its findings as to the facts, or make new findings
by reason of additional evidence so taken and filed. The Authority shall
file its modified or new findings, which, with respect to questions of fact,
if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any,
for the modification or setting aside of its original order. Upon the filing
of the record with the court, the jurisdiction of the court shall be
exclusive and its judgment and decree shall be final, except that the
judgment and decree shall be subject to review by the Supreme Court of the
United States upon writ of certiorari or certification as provided in
section 1254 of title 28.
* * * * * * *