ORAL ARGUMENT SCHEDULED FOR APRIL 23, 1998 No. 97-1522 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _______________________________ UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C., Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent _______________________________ ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY DAVID M. SMITH Solicitor SARAH WHITTLE SPOONER Attorney Federal Labor Relations Authority 607 14th Street, N.W. Suite 330 Washington, D.C. 20424-0001 (202) 482-6620 ORAL ARGUMENT SCHEDULE D FOR APRIL 23, 1998 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 National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. The agency is the petitioner in this court proceeding; the Authority is the respondent. B. Rulings under review The ruling under review is the Authority's decision and order in National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C., Case No. 0-NG-2284, issued on June 30, 1997. The Authority's decision is reported at 53 FLRA (No. 20) 139. 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 ISSUES 2 STATEMENT OF THE CASE 2 I. Nature of the Case 2 II. Statement of the Facts 3 A. Background 3 B. Arguments Raised to the Authority 4 C. The Authority's Decision 5 STANDARD OF REVIEW 7 SUMMARY OF THE ARGUMENT 9 ARGUMENT 12 I. THE AUTHORITY PROPERLY DETERMINED THAT THE AGENCY HAD, AND FAILED TO MEET, THE BURDEN OF ESTABLISHING THAT THE PROPOSAL WAS OUTSIDE THE DUTY TO BARGAIN 12 A. An agency has the burden to establish its assertion that a proposal is outside the duty to bargain 12 1. The statutory and regulatory framework of negotiability appeals 13 2. Authority precedent establishes that an agency must specifically establish its contention that a proposal is outside the duty to bargain 14 3. Precedent of this Circuit establishes that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination 16 4. Placing the burden of specificity on parties maintains efficiency and is consistent with concepts of administrative exhaustion 17 B. The Agency failed to meet its burden to establish that the proposal is outside the duty to bargain 19 1. The Agency did not cite to a specific regulatory section or provide any evidence or arguments in support of its allegation of nonnegotiability 20 2. Precedent relied on by the Agency is distinguishable 22 a. Dep't of Treasury 22 b. POPA 24 II. THE AGENCY'S ADDITIONAL ALLEGATIONS ARE NOT PROPERLY BEFORE THIS COURT AND OTHERWISE LACK MERIT 25 A. Inconsistency with the Standards of Ethical Conduct 26 1. This Court does not have jurisdiction to address the Agency's claim because the Agency did not raise that claim to the Authority 26 2. The Agency did not request reconsideration in this case 28 3. The record does not demonstrate that the proposal is inconsistent with the Standards of Ethical Conduct 30 B. The proposal is not inconsistent with management's right to assign work 33 1. This Court lacks jurisdiction to consider the Agency's allegations that the Authority misconstrued the FAA's position 34 2. The Authority's construction of the Agency's arguments was reasonable and is entitled to deference 35 3. The proposal does not involve training and is not inconsistent with management's right to assign work 36 C. The Authority followed its regulations 38 1. Court lacks jurisdiction to consider the Agency's allegations that the Authority failed to follow its regulations 39 2. The Authority acted consistent with its regulations and precedent 40 CONCLUSION 43 ADDENDUM Relevant portions of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) and other pertinent regulations A-1 TABLE OF AUTHORITIES *AFGE, Local 2303 v. FLRA, 815 F.2d 718 (D.C. Cir. 1987) 16, 17, 18, 36 Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281 (1974) 8 Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) 9 Burlington Truck Lines v. United States, 371 U.S. 156 (1962) 8 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 8 Dept of the Treasury, U.S. Customs Service v. FLRA, 762 F.2d 1119 22, 23, 24 DoD v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981) 8, 19 EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 476 U.S. 19 (1986) 8, 18, 27 Exxon Corp. v. FERC, 114 F.3d 1252 (D.C. Cir. 1997) 41 Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990) 8 K N Energy, Inc. v. FERC, 968 F.2d 1295 (D.C. Cir. 1992) 28 Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) 13 McCarthy v. Madigan, 503 U.S. 140 (1992) 18 NLRB v. Hasbro Indus., 672 F.2d 978 (1st Cir. 1982) 36 *Cases or authorities chiefly relied upon are marked by asterisks *NFFE, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982) passim NFFE, Local 1669 v. FLRA, 745 F.2d 705 (D.C. Cir. 1984) 8 *NFFE v FLRA, 789 F.2d 944 (D.C. Cir. 1986) 15, 16 NLRB v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993) 29 NTEU v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983) 8 National Treasury Employees Union v. FLRA, 30 F.3d 1510 (D.C. Cir. 1994) 20 Overseas Education Association v. FLRA, 827 F.2d 814 (1987) 8, 27 Overseas Education Association v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) 7, 8 *U.S. Department of Commerce v. FLRA, 7 F.3d 243 (D.C. Cir. 1993) 27, 29, 34 *U.S. Department of Defense v. FLRA, 982 F.2d 577 (D.C. Cir. 1993) 15, 20, 27 U.S. Department of Veterans Affairs v. FLRA, 1 F.3d 19 (D.C. Cir. 1993) 28 DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY AFGE, AFL-CIO, Local 3760 and Department of Health and Human Services, Social Security Administration, 32 F.L.R.A. 813 (1988) 15 AFGE, AFL-CIO, Local 3760 and Department of Health and Human Services, Social Security Administration, 33 F.L.R.A. 498 (1988) 42 TABLE OF AUTHORITIES (Continued) Decisions of the Federal Labor Relations Authority: AFGE, Department of Education Council of AFGE Locals and U.S. Department of Educ., 38 F.L.R.A. 1068 (1990) 14, 15, 41 AFGE, Local 2094 and Veterans Admin. Medical Center, 22 F.L.R.A. 710 (1986), affd on other grounds sub nom. AFGE, Local 2094 v. FLRA, 833 F.2d 1037 (1987) 37, 38 AFGE, Local 3601 and U.S. Department of Health and Human Services, Public Health Service, 38 F.L.R.A. 177 (1990) 39 AFGE, Local 3673 and U.S. Department of the Navy, Naval and Warfare Center, 50 F.L.R.A. 720 (1995) 34 Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 F.L.R.A. 1436 (1987) 14 National Treasury Employees Union and Department of the Treasury, 11 F.L.R.A. 247 (1983) 23 NFFE, Local 15 and Dep't of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, IL, 30 F.L.R.A. 1046 (1988) 42 Patent Office Professional Associate and U.S. Department of Commerce, Patent and Trademark Office, 41 F.L.R.A. 795 (1991) 14, 24, 25 U.S. Department of Health and Human Services, Social Security Administration and AFGE, Local 1336, 39 F.L.R.A. 22 (1991) 29 Decisions of the Federal Labor Relations Authority: U.S. Department of the Air Force and NAGE, Local R7-23, 50 F.L.R.A. 84 (1995) 29 STATUTES Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) 1, 3 5 U.S.C. § 7105(a)(2)(E) 1 5 U.S.C. § 7106(a)(2)(B) 3, 4, 37 5 U.S.C. § 7117(a)(1) 3 5 U.S.C. § 7117(c) passim 5 U.S.C. § 7117(c)(1) 13 5 U.S.C. § 7117(c)(3)(A) 13 5 U.S.C. § 7117(c)(4) 13 5 U.S.C. § 7123(a) 2, 3 5 U.S.C. § 7123(b) 2, 3 5 U.S.C. § 7123(c) passim 5 U.S.C. § 706(2)(A) 7 5 U.S.C. § 7353 26 31 U.S.C. § 1353 32 37 U.S.C. § 418 27 49 U.S.C. § 326(a) 26, 31 Executive Order 12574 [sic], as modified by EO 12731 and 5 CFR 2635.01 [sic] et. seq. 4, 5, 20, 21 Privacy Act, 5 U.S.C. § 552a 25 CODE OF FEDERAL REGULATIONS 5 C.F.R. Part 2424 13 5 C.F.R. § 2424.4 14, 15 5 C.F.R. § 2424.4(a)(2)(ii) 41 5 C.F.R. § 2424.6 14 5 C.F.R. § 2424.6(a)(2) 13, 14, 16, 17 5 C.F.R. § 2424.7 14 5 C.F.R. § 2424.7(b) 16 5 C.F.R. § 2429.17 18, 29, 39, 40 5 C.F.R. Part 2600 24 5 C.F.R. Part 2635 22, 26, 33 5 C.F.R. § 2635.01 5, 21 5 C.F.R. § 2635.201 30 5 C.F.R. § 2635.203(b) 31 5 C.F.R. § 2635.203(b)(8)(i) 32 5 C.F.R. § 2635.204(k) 32 MISCELLANEOUS Federal Personnel Manual, 5 C.F.R. 551 17, 23 Federal Travel Regulations 17 GLOSSARY AFGE - American Federation of Government Employees, AFL-CIO Agency - Federal Aviation Administration ATAs - Air Traffic Assistants ATCs - Air Traffic Controllers AFGE, Dep't of Educ. - AFGE, Dep't of Educ. Council of AFGE Locals and U.S. Dep't of Educ., 38 FLRA 1068 (1990) AFGE, Local 2303 - AFGE, Local 2303 v. FLRA, 815 F.2d 718 (D.C. Cir. 1987) AFGE, Local 3760 - AFGE, AFL-CIO, Local 3760 and Dep't of Health and Human Services, Social Security Administration, 32 FLRA 813 (1988) Br. - Brief Coordinating Committee Coordinating Committee of Unions of Unions - and Dep't of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436 (1987) Dep't of Commerce - U.S. Dep't of Commerce v. FLRA, 7 F.3d 243 (D.C. Cir. 1993) Dep't of Defense - U.S. Dep't of Defense v. FLRA, 982F.2d 577 (D.C. Cir. 1993) Dep't of the Air Force - U.S. Dep't of the Air Force and NAGE, Local R7-23, 50 FLRA 84 (1995) Dep't of the Navy - AFGE, Local 3673 and U.S. Dep't of the Navy, Naval and Warfare Center, 50 FLRA 720 (1995) Dep't of Treasury - Dep't of the Treasury, U.S. Customs Service v. FLRA, 762 F.2d 1119 (1985) DoD v. FLRA - Dep't of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981) EEOC - EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 476 U.S. 19 (1986) FAA - Federal Aviation Administration FAM program - Liaison and Familiarization Travel program FPM - Federal Personnel Manual JA - Joint Appendix NAGE, Local R-310 - National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, 53 FLRA 139 (1996) National Treasury - National Treasury Employees Union Employees Union - and Department of the Treasury, 11 FLRA 247 (1983) NFFE, Local 1167 - NFFE, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982) NFFE, Local 1669 - NFFE, Local 1669 v. FLRA, 745 F.2d 705 (D.C. Cir. 1984) Overseas Educ. - Overseas Ass'n v. FLRA, 827 F.2d 814 (1987) POPA - Patent Office Professional Assoc. and U.S. Dep't of Commerce, Patent and Trademark Office, 41 FLRA 795 (1991) Public Health Service - AFGE, Local 3601 and U.S. Dep't of Health and Human Services, Public Health Service, 38 FLRA 177 (1990) Standards of Ethical - Standards of Ethical Conduct for Conduct Employees of the Executive Branch Supplemental Response - Response to the Agency's Supplemental SOP Supplemental SOP - Supplemental Statement of Position Statute - Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 ULP - Unfair Labor Practice Union - National Association of Government Employees, Local R3-10 ORAL ARGUMENT SCHEDULED FOR APRIL 23, 1998 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 97-1522 _______________________________ U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C. Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent _______________________________ ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY STATEMENT OF JURISDICTION The final decision and order under review in this case was issued by the Federal Labor Relations Authority (Authority or FLRA) in National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, 53 FLRA 139 (1996), on June 30, 1997. The Authority exercised jurisdiction over the case pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) (Statute).[1] This Court has jurisdiction over the petition for review and cross application for enforcement pursuant to section 7123(a) and (b) of the Statute. STATEMENT OF THE ISSUES 1. Whether the Authority properly determined that the Agency had, and failed to meet, the burden of establishing that the proposal was outside the duty to bargain. 2. Whether this court has jurisdiction to consider arguments that the Agency did not raise to the Authority. STATEMENT OF THE CASE I. Nature of the Case This case arises as a negotiability proceeding under section 7117(c) of the Statute. National Association of Government Employees, Local R3-10 (Union), which represents Air Traffic Assistants (ATAs) employed by the Federal Aviation Administration (Agency or FAA), submitted a bargaining proposal concerning the implementation of a Liaison and Familiarization Travel program (FAM program). The Agency declared the proposal nonnegotiable. The Union appealed the Agency's allegations of nonnegotiability to the Authority under section 7117(c) of the Statute. The Authority held the proposal within the duty to bargain because the FAA failed to establish that the proposal was inconsistent with a Government- wide regulation under section 7117(a)(1) of the Statute. Pursuant to section 7123(a) and (b) of the Statute, the FAA seeks review, and the Authority seeks enforcement, of the Authority's bargaining order in the case. II. Statement of the Facts A. Background This case involves approximately 365 ATAs who are employed by the FAA and are members of a nationwide unit represented by the Union. JA 9.[2] Duties of the ATAs include assisting Air Traffic Controllers (ATCs) by providing ATCs with support data and information. In October 1995, the Union submitted to the Agency a proposal for bargaining entitled "Liaison and Familiarization Travel." JA 12. That proposal would make ATAs eligible to participate in the FAA's national standardized familiarization travel program.[3] Id. The Agency refused to bargain on the Union's proposal, asserting that it was outside the duty to bargain because it interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. JA 17. In response to the Agency's allegation of nonnegotiability, the Union filed the instant negotiability appeal with the Authority pursuant to section 7117(c) of the Statute. B. Arguments Raised to the Authority Before the Authority, the Agency initially reasserted in its Statement of Position that the proposal was outside the duty to bargain because it was inconsistent with management's rights under section 7106(a)(2)(B) of the Statute. Specifically, the Agency claimed that those portions of the proposal requiring the Agency to make training assignments were inconsistent with management's right to assign work. JA 29. In its Response to the Agency's Statement of Position (Response), the Union modified the proposal by deleting all the portions of the proposal referring to training. JA 34-35. The Union asserted that, as modified, the proposal did not interfere with management's right to assign work. With the Authority's permission (JA 46), the Agency filed a Supplemental Statement of Position (Supplemental SOP). JA 48. In its two-page Supplemental SOP, the Agency began by noting that the Union had substantially changed the original proposal by deleting all references to training and acknowledging that the intent of the new proposal was to provide a benefit to ATAs that the Agency conferred to other employees. In its Supplemental SOP, the Agency made no reference to its management right to assign work, but instead asserted that the proposal set forth in the Union's Response was contrary to Government-wide regulation and outside the duty to bargain because: Executive Order 12574 [sic] as modified by EO 12731 and 5 CFR 2635.01 et. seq., Standard of Conduct for Employees of the Executive Branch [sic], a government- wide regulation prohibits the acceptance of gifts by federal employees. Deleting all references to the FAM program as a training programs [sic], results in allowing the ATAs to accept free air travel for personal use. Free air travel for personal use is considered a gift prohibited by the Standards of Conduct for Emloyees [sic] of the Executive Branch [sic]. JA 48A. This paragraph encompasses the FAA's entire argument explaining why the Union's proposal is outside the duty to bargain. The Union filed a Response to the Agency's Supplemental SOP (Supplemental Response), asserting that the FAM program set forth in the proposal would not constitute a gift for ATAs, just as the existing FAM program established for other employees of the Agency does not. JA 49-50. The Union also claimed that the proposal was "intended only to ensure that ATA's [sic] are treated fairly and equitably[,]" and to provide ATAs with "the same benefit of attending Union and/or Agency sponsored events as well as obtaining the familiarization with the operation of the aircraft equipment . . . ." JA 50. According to the Union, participation in the FAM program would "enhance ATA's [sic] job performance and promotional opportunities." Id. C. The Authority's Decision As a threshold matter, the Authority found that the original proposal submitted by the Union in its Petition for Review was no longer before the Authority for a negotiability determination. The Authority based this finding on the fact that the Union had substantially modified its original proposal and the Agency had not objected to the modification by claiming that the proposal as set forth in the Union's Response was not properly before the Authority. Further, the Agency filed a Supplemental SOP in which it addressed the merits of the negotiability of the modified proposal, asserting that the proposal was outside the duty to bargain on wholly different grounds than asserted with regard to the original proposal. JA 51-52, n.1. Following standard practice, the Authority then addressed the meaning of the proposal. The Authority noted that the parties had not provided information about the FAM program as established for ATCs and the Union had not explained how the proposal would operate. Nonetheless, on examination of the plain wording of each section of the proposal, the Authority discussed what the proposal would accomplish and established the meaning of the proposal. JA 53. Having determined that the proposal set forth in the Union's Response was the proposal on which the parties were seeking a negotiability determination, and having sufficiently articulated the meaning of the proposal, the Authority considered the allegation that the proposal was outside the duty to bargain. Specifically, the Authority addressed the Agency's Supplemental SOP, in which the Agency claimed that the proposal was inconsistent with the Standards of Ethical Conduct for Employees of the Executive Branch (Standards of Ethical Conduct). In analyzing the Agency's contention, the Authority noted that the Agency did not cite to any specific section of the regulation nor "offer any arguments establishing a basis for its contention." Id. Relying on established precedent, the Authority stated that "parties bear the burden of creating a record upon which the Authority can make a negotiability determination." Id. Describing an agency's burden in the negotiability context, the Authority noted that an agency that does not identify and analyze the specific provisions of law with which a proposal is alleged to be inconsistent "acts at its peril." Id. Turning to the Agency's allegation that the proposal was outside the duty to bargain in this case, the Authority found that the Agency's "bare assertion" did not meet that burden. JA 54. In doing so, the Authority noted that it is not appropriate for the Authority to base a negotiability determination on its own independent review of an arguably pertinent regulation. It also noted that even if the Authority bore that burden, the record in the case was insufficient for the Authority to conclude that the proposal was inconsistent with the regulation. JA 54 n.2. Accordingly, the Authority concluded that the proposal was within the duty to bargain. STANDARD OF REVIEW The standard of review of Authority decisions is narrow; Authority action shall be set aside only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 7123(c), incorporating 5 U.S.C. § 706(2)(A); Overseas Educ. Ass'n v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir. 1988); EEOC v. FLRA, 744 F.2d 842, 847 D.C. Cir. 1984), cert. dismissed, 476 U.S. 19 (1986) (EEOC). Under this standard, unless it appears from the Statute or its legislative history that the Authority's construction of its enabling act is not one that Congress would have sanctioned, the Authority's construction should be upheld. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990). More specifically, "a negotiability decision will be upheld if the FLRA's construction of the [Statute] is 'reasonably defensible.'" Overseas Educ. Ass'n v. FLRA, 827 F.2d 814, 816 (D.C. Cir. 1987) (Overseas Educ Ass'n.) (quoting Dep't of Defense v. FLRA, 659 F.2d 1140, 1162 n. 121 (D.C. Cir. 1981) (DoD v. FLRA)). Further, factual findings of the Authority that are supported by substantial evidence on the record as a whole are conclusive. 5 U.S.C. § 7123(c); NTEU v. FLRA, 721 F.2d 1402, 1405 (D.C. Cir. 1983). Administrative agency determinations are to be upheld even if that decision is of "less than ideal clarity[,]" Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974), so long as there is a "rational connection between the facts found and the choice made[.]" Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962). See also NFFE, Local 1669 v. FLRA, 745 F.2d. 705, 708 (D.C. Cir. 1984) (NFFE, Local 1669). Finally, as the Supreme Court has stated, the Authority is entitled to "considerable deference when it exercises its 'special function of applying the general provisions of the [Statute] to the complexities' of federal labor relations." Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983). SUMMARY OF THE ARGUMENT I. The statutory and regulatory provisions governing negotiability appeals, as well precedent of the Authority and this Court, confirm that an agency has the burden to provide the Authority with the information, evidence, and arguments supporting its allegation that a proposal is outside the duty to bargain. Requiring and enforcing such burdens maintains efficiency and is consistent with the principles of administrative exhaustion. The Agency erroneously asserts that its three-sentence submission to the Authority, which failed to cite any specific regulatory provision or provide any evidence, information, or arguments supporting its statement, satisfied the Agency's statutory and regulatory obligation. Because the Agency failed to establish, with its bare and unsupported allegation, that the proposal was outside the duty to bargain, the Authority properly found the proposal within the duty to bargain. Contrary to the Agency's assertions, the Authority does not have an obligation, where an agency fails to meet its burden, to abdicate its role as a neutral decision-maker and independently locate and analyze arguably applicable regulatory provisions. In this regard, there is no merit to the Agency's claims that the Authority's action in this case contravened previous determinations of this Court and misinterpreted the Authority's own precedent. II. This Court does not have jurisdiction to address the Agency's allegations that the proposal is inconsistent with the Standards of Ethical Conduct or management's right to assign work because the Agency's arguments, now being made to this Court, were never raised before the Authority. Moreover, the Agency failed to take the appropriate action of seeking reconsideration concerning these allegations with the Authority. For the same reasons, the Agency's claims that the Authority failed to follow its regulations and precedent are not properly before this Court. However, even if the Court opts to address the merits of these claims, which were never presented to or adjudicated by the Authority, the arguments are without merit. With regard to the Agency's Standards of Ethical Conduct contention, the Agency here makes detailed arguments asserting that the proposal is inconsistent with numerous specific regulatory provisions. Notwithstanding the Agency's assertions that the proposal's inconsistency with the Government-wide regulation is clear, the Agency fails again to address how regulatory provisions directly implicated by its arguments impact on the legality of the proposal. Contrary to the Agency's arguments, it is far from certain that the proposal is inconsistent with the Standards of Ethical Conduct. As for its management's right claims, the Agency's asserts that the proposal could implicate its right to assign work and the Authority failed to consider this assertion. However, after noting that the Union had modified its original proposal to address the Agency's original management- right concerns and after reviewing the Agency's Supplemental SOP, the Authority reasonably concluded that the Agency was no longer contending that the proposal contravened the Agency's management rights. The Agency is seeking to have this Court both disregard the deference accorded the Authority in interpreting a parties' submission and adjudicate an issue never raised to the Authority. Were this Court to nevertheless entertain this issue, in point of fact it is not clear, as a result of the Union's modifications to its original proposal deleting all references to training, that the modified proposal is inconsistent with the Agency's statutory right to assign work. Finally, also misplaced are the Agency's claims that the Authority failed to follow its regulations and its precedent. Specifically, the Agency asserts that the Authority was obliged to require the Union to explain the proposal in this case and held the Agency responsible for this deficiency. However, because the Authority was able to understand the import of the plain wording of the Union's proposal, it was unnecessary to require the Union to explain how the proposal would operate. As such, the Authority did not act inconsistently with its regulations or precedent and instead, only held the Agency accountable for failing to explain how the proposal was inconsistent with a Government-wide regulation. ARGUMENT I. THE AUTHORITY PROPERLY DETERMINED THAT THE AGENCY HAD, AND FAILED TO MEET, THE BURDEN OF ESTABLISHING THAT THE PROPOSAL WAS OUTSIDE THE DUTY TO BARGAIN The Authority correctly determined that the Agency had, and failed to meet, the burden of establishing that the proposal at issue was outside the duty to bargain. First, the burden placed on the Agency in this case is in accord with statutory and regulatory provisions governing negotiability appeals, is consistent with precedent of the Authority and this Circuit, and effectuates the Statute's policy considerations of efficiency and administrative exhaustion. Second, the Authority properly determined that the Agency failed to meet its burden in this case because the Agency made only a bare assertion that the proposal was outside the duty to bargain. In this connection, precedent on which the Agency seeks to rely is distinguishable from this case. A. An agency has the burden to establish its assertion that a proposal is outside the duty to bargain The statutory and regulatory provisions governing negotiability appeals, as well as precedent of the Authority and this Circuit, confirm that an agency has the burden to provide the Authority with the information, evidence, and arguments establishing its contention that a proposal is outside the duty to bargain. Moreover, requiring and enforcing such burdens is consistent with the principles of administrative exhaustion. 1. The statutory and regulatory framework of negotiability appeals Section 7117(c) of the Statute provides that a union may appeal an agency's allegation that a proposal is outside the duty to bargain "in accordance with the provisions of this subsection." 5 U.S.C. § 7117(c)(1). Following the union's filing of a petition for review with the Authority, an agency "shall" file with the Authority a statement withdrawing the allegation or "setting forth in full its reasons supporting the allegation[.]" 5 U.S.C. § 7117(c)(3)(A). Thereafter, the union "shall" file its response to the agency's statement. 5 U.S.C. § 7117(c)(4). Congress has delegated the Authority the responsibility in the first instance to determine whether a proposal comes within the statutory duty to bargain. Library of Congress v. FLRA, 699 F.2d 1280, 1284 (D.C. Cir. 1983). The Authority has promulgated regulations implementing its statutory responsibilities, and these regulations require the parties to provide certain information to enable the Authority to resolve negotiability disputes. 5 C.F.R. Part 2424. As relevant here, these regulations require an agency to file a statement with the Authority setting forth, in detail, the reasons supporting its allegation that the proposal is outside the duty to bargain. "The statement shall cite the section of any law, rule or regulation relied upon as a basis for the allegation. . . ." 5 C.F.R. § 2424.6(a)(2) (emphasis added). 2. Authority precedent establishes that an agency must specifically establish its contention that a proposal is outside the duty to bargain The Authority has repeatedly held, relying on NFFE, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982) (NFFE, Local 1667), that an agency has the burden of establishing that a proposal is outside the duty to bargain and if an agency fails to satisfy the regulatory requirements, it "acts at its peril." See Patent Office Professional Assoc. and U.S. Dep't of Commerce, Patent and Trademark Office, 41 FLRA 795, 820 (1991) (citing NFFE, Local 1167, 681 F.2d at 886) (POPA). This is consistent with regulatory provisions describing the information necessary for the Authority to make a negotiability determination. 5 C.F.R. §§ 2424.4, 2424.6, and 2424.7. Specifically, the Authority has determined that the agency's burden, as set forth in 5 C.F.R. § 2424.6, is to provide the Authority with the information, evidence, and arguments supporting its allegation that the proposal falls outside the duty to bargain. See Coordinating Committee of Unions and Dep't of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1441 (1987) (Coordinating Committee of Unions) (finding proposal within duty to bargain where agency failed to support its claim that proposal conflicts with a Government-wide regulation and provided no facts or argument in support of its claim). Mere citation to a law or regulation, without an explanation in support of its contention of inconsistency, does not suffice. See AFGE, Dep't of Educ. Council of AFGE Locals and U.S. Dep't of Educ., 38 FLRA 1068, 1105-06 (1990) (finding a proposal within the duty to bargain because the agency did not offer any reasons establishing how the proposal conflicted with an Executive Order) (AFGE, Dep't of Educ.).[4] This Court has taken note of the Authority's rules in this regard. See U.S. Dep't of Defense v. FLRA, 982 F.2d 577, 579 (D.C. Cir. 1993) (Dep't of Defense) (the Authority's rules require an agency to provide specific citations in support of allegations of nonnegotiability). Moreover, this Court has agreed that it is the Authority's responsibility to create and administer burdens in the negotiability context. NFFE v. FLRA, 789 F.2d 944, 948 (D.C. Cir. 1986). Specifically, the Court stated that it would not "in the first instance, express a view on how the Authority is to proceed in allocating the burden of proof between [parties]" where the Authority reviews unfair labor practice cases involving the negotiability of provisions. Id. 3. Precedent of this Court establishes that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination In NFFE, Local 1167, this Court rejected the argument that the Authority had an "obligation to undertake a substantive independent analysis of the content of the proposals" to determine their legality. 681 F.2d at 891. The Court held that under section 7117(c) of the Statute, the parties must satisfy two principal responsibilities. First, "the parties bear the burden of creating a factual record sufficient for the Authority to resolve the negotiability dispute." Id. In this regard, the Court stated that the Authority is "not obligated to conduct an independent factual investigation in order to secure record proof with respect to either party's claims." Id. Second, the Court, citing both 5 C.F.R. §§ 2424.6(a)(2) and 2424.7(b), held that "the parties should direct the Authority's attention with as much specificity as possible, to the statutes and regulations relevant to an agency's duty to bargain." Id. Specifically, the Court found that "[w]hile the Authority plainly is not foreclosed from making an independent inquiry into the law relevant to each agency's exercise of management rights, the parties should not expect the Authority, sua sponte, to locate, analyze and apply all arguably pertinent regulations from the myriad of federal regulations governing the numerous federal agencies within the Authority's jurisdiction." Id. This Court has reiterated its view that the parties bear this burden. AFGE, Local 2303 v. FLRA, 815 F.2d 718, 719 n.3 (D.C. Cir. 1987) (AFGE, Local 2303). In AFGE, Local 2303, the Court noted that the "precise basis for the agency's allegation [that the proposal is inconsistent with regulation] is impossible to discern; the [agency's] letter asserted in the most general terms that §§ 6 and 7 of the proposal conflicted with provisions of the 'Federal Travel Regulations' and the 'Federal Personnel Management Manual, 5 C.F.R. 551.'" Id. (quoting the agency's allegation of nonnegotiability). In this connection, the Court stated that "[t]he adequacy of the legal support for the allegation of nonnegotiability would have been a matter for the Authority to determine had it not adjudged the union's petition untimely." Id. 4. Placing the burden of specificity on parties maintains efficiency and is consistent with concepts of administrative exhaustion Requiring parties to meet particular burdens in the context of negotiability disputes balances the competing policies that Congress sought to effectuate by means of the appeals procedure set forth in the Statute. According to this Court, the appeals procedure set forth in section 7117(c) of the Statute "could not possibly be expeditious if the FLRA were required in every case to supplement a party's incomplete analysis" and "sua sponte . . . locate, analyze and apply all arguably pertinent regulations from the myriad of federal regulations governing the numerous federal agencies within the Authority's jurisdiction." NFFE, Local 1167, 681 F.2d at 891. Similarly, in AFGE, Local 2303 this Court rejected the assertion that compliance with the Authority's procedures "impedes the give-and-take necessary for effective bargaining," finding instead that the Authority's procedural rules were necessary to preserve the integrity of the negotiability "scheme Congress established in Section 7117(c)." 815 F.2d at 723. Allocating burdens to the parties in the negotiability context is also consistent with the concepts of administrative exhaustion. By requiring parties to assert and establish their arguments before the Authority, the courts respect the role of the Authority and gain the benefit of the Authority's position concerning the issues under consideration. Through this process, the courts avoid having to resolve matters, as the original adjudicator, that should have been raised to and might have been resolved by the Authority. See McCarthy v. Madigan, 503 U.S. 140, 145 (1992) ("Exhaustion is required because it serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency."). Viewing the process otherwise is inconsistent with section 7123(c) of the Statute, which demonstrates Congress's strong intent to have disputes resolved in the first place with the Authority. See EEOC, 476 U.S. at 23. Of course, it is conceivable that as a result of inadequate administrative submissions, the Authority may direct parties to bargain over a matter that is not within the duty to bargain.[5] However, the alternative to this process is to transform the Authority into a legal researcher and, ultimately, an advocate for one of the parties. Vesting the Authority with this responsibility would require the Authority to abdicate the neutral decision-maker role that Congress envisioned. See DoD v. FLRA, 659 F.2d at 1161 (Congress intended the Authority exercise "judgment and balance" in resolving duty to bargain disputes). Additionally, transferring this responsibility to the Authority could have significant resource implications. B. The Agency failed to meet its burden to establish that the proposal is outside the duty to bargain The Authority properly found that the Agency failed to meet its burden of providing sufficient information, evidence, and arguments establishing that the proposal was inconsistent with regulation. Specifically, in the single paragraph setting forth the Agency's allegation that the proposal was inconsistent with a Government-wide regulation, the Agency did not cite to any specific section of the Standards of Ethical Conduct and did not provide an explanation or argument supporting or establishing its allegation. The Agency defends its admittedly "inartful" (Agency Br. p.18) and "albeit imperfect[]" (Agency Br. p.19) pleading before the Authority by claiming that the inconsistency with the regulations is "a matter of common sense" and "clear and blatant."[6] Agency Br. p.20. Such conclusory and disingenuous reasoning is not a basis for the Authority to find a proposal outside the duty to bargain. Indeed, an Authority determination that a proposal is inconsistent with a Government-wide regulation is typically subjected to close scrutiny on judicial review. See National Treasury Employees Union v. FLRA, 30 F.3d 1510, 1515 (D.C. Cir. 1994) (setting aside Authority's determination that union's proposal was inconsistent with Government-wide regulation, notwithstanding the fact that there was a "strong case for the FLRA's view"). As a result, on concluding that a proposal is not within the duty to bargain, the Authority is obliged to explain, with specificity, how the proposal is at variance with law. Dep't of Defense, 982 F.2d at 580. In satisfaction of this obligation in this case, the Authority would have been required, sua sponte, to review and analyze a considerable body of law in order to ascertain whether there was sufficient support for the Agency's unspecified allegation that the proposal was outside the duty to bargain. This exceeds what the Authority is required to do. NFFE, Local 1167, 681 F.2d at 891. 1. The Agency did not cite to a specific regulatory section or provide any evidence or arguments in support of its allegation of nonnegotiability The Agency's 2-page submission contained only three sentences setting forth the support for its contention that the proposal was outside the duty to bargain. In the first sentence, the Agency stated that "Executive Order 12574 [sic], as modified by Executive Order 12731 and 5 C.F.R. 2635.01 [sic] et. seq., Standard of Conduct for Employees of the Executive Branch [sic], a government-wide regulation prohibits the acceptance of gifts by federal employees." JA 48A. This sentence incorrectly cited the Executive Order as 12574 rather than 12674, misnamed the Government-wide regulation in question, and failed to cite to any particular section of the extensive regulation it generally referenced, instead citing to a non-existent section of Title 5 of the Code of Federal Regulations (CFR). In the second sentence, the Agency stated that "Deleting all references to the FAM program as a training programs [sic], results in allowing the ATAs to accept free air travel for personal use." Id. The Agency neither explained this assertion nor offered any evidence or information substantiating its claim. Instead, the Agency simply relied on its bare allegation. In the third and final sentence of its position statement, the Agency stated that "Free air travel for personal use is considered a gift prohibited by the Standards of Conduct for Emloyees [sic] of the Executive Branch." Id. As with the preceding two sentences, the Agency did not cite to any specific regulatory provisions with which the proposal was allegedly inconsistent. Nor did the Agency offer any explanation, information, or arguments establishing the validity or viability of its statement that such travel amounts to a gift. The Agency's submission in this case fails to satisfy its statutory and regulatory obligations already discussed herein. To counter this deficiency, the Agency argues that the Authority should have reviewed the Standards of Ethical Conduct, determined the applicable subpart of Part 2635 of Title 5 of the CFR, and located and decided, sua sponte, which of the specific provisions in that subpart were inconsistent with the Union's proposal. Agency Br. pp.19-20. But as has been addressed herein, this is neither the responsibility nor the proper role of the Authority. The effect of the Agency's argument is that the Authority should have abandoned its role as a neutral and assumed the roles of legal researcher and advocate for the Agency. This the Authority properly declined to do. 2. Precedent relied on by the Agency is distinguishable The Agency argues that in concluding that the FAA failed to satisfy its burden in this case, the Authority contravened previous determinations of this Court and misinterpreted the Authority's own precedent. Agency Br. pp.18-21. On close examination, neither of these assertions has merit. a. Department of Treasury To begin with, the Agency erroneously claims that the FAA's bare assertions to the Authority here are satisfactory in light of this Court's decision in Department of the Treasury, U.S. Customs Service v. FLRA, 762 F.2d 1119 (1985) (Department of Treasury). Agency Br. pp.18-19. It is correct that the Department of Treasury decision is similar to the case sub judice in that the Court there determined that "an argument was presented to the Authority with sufficient clarity" notwithstanding the fact that the agency failed to cite to a specific provision in the CFR. 762 F.2d at 1122. However, the significant dissimilarities between this case and Department of Treasury render it inapposite here. First, in Department of Treasury, the Authority had not, as it did here, concluded that the agency failed to meet its burden because it offered only bare assertions that the proposal was inconsistent with Government-wide regulation. National Treasury Employees Union and Department of the Treasury, 11 FLRA 247 (1983) (National Treasury Employees Union). On the contrary, unlike the FAA, the agency in National Treasury Employees Union made and the Authority analyzed arguments concerning whether the proposal was inconsistent with various specific provisions of the Federal Personnel Manual (FPM). 11 FLRA at 249-50. As a result of this analysis, certain aspects of the union's proposal in that case were found to be inconsistent with the FPM. Id. The dispute in Department of Treasury was that the agency raised a different regulatory provision in court than it had argued to the Authority; the Court was thus analyzing whether the agency could overcome the statutory prohibition in section 7123(c) of the Statute precluding court review of matters not urged before the Authority. 762 F.2d at 1122. Because the Authority had not asserted that the Agency's administrative submissions were inadequate, the Court in Department of Treasury did not consider whether the agency's pleadings before the Authority sufficiently set forth, with requisite specificity and argument, the information necessary to enable the Authority to make an intelligent negotiability determination. Second, two points were central to the Court's excusing the agency's failure to cite to a specific regulatory provision in Department of Treasury: the Court's conclusion that the regulatory provision in question involved a "well known" employment practice requirement established by the Office of Personnel Management; and, the Court's view that the FLRA should have been aware of this employment practice provision. Id. The Court noted that the agency's failure would not have been excusable had the regulation involved "an obscure, technical provision of civil service law that FLRA might be unaware of." Id. The regulation at issue here falls into the latter category, as it does not implicate employment issues that the Authority typically administers. In point of fact, as of the time of the issuance of the decision in this case, the Authority had never before issued a decision implicating any provision of 5 C.F.R. Part 2600. b. POPA The Agency also erroneously argues that the Authority misapplied its own POPA precedent. Agency Br. p.21. But in POPA, as in this case, the Authority refused to consider an agency's unsupported and unspecified assertion that a proposal was inconsistent with law. 41 FLRA at 820. Also in POPA, as here, the Authority ultimately concluded that a proposal was within the duty to bargain because the agency acted at its peril when it failed to bear its burden of creating a record upon which the Authority could make a negotiability determination. Id. It is true that in POPA the Authority briefly reflected on the agency's assertion that the proposal was inconsistent with the Privacy Act; however, the Authority did not undertake the kind of independent, section-by-section legal research that the Agency here demands of the Authority. Significantly, the Authority's one-paragraph discussion of the Privacy Act in POPA contains not a single reference to individual provisions of the Privacy Act (5 U.S.C. § 552a). Id. at 821. Moreover, and as this Court has held, "[w]hile the Authority plainly is not foreclosed from making an independent inquiry into the law," the parties have no right to expect the Authority to do so. NFFE, Local 1167, 681 F.2d at 891. In short, the Authority's action in this case is entirely consistent with its POPA decision and neither the POPA decision nor the precedent of this Court offers support for what the Agency here asserts the Authority was obliged to do. II. THE AGENCY'S ADDITIONAL ALLEGATIONS ARE NOT PROPERLY BEFORE THIS COURT AND OTHERWISE LACK MERIT The Agency urges this Court to address the merits of its arguments claiming that the proposal is inconsistent with the Standards of Ethical Conduct and management's right to assign work. In addition, the Agency claims that the Authority failed to follow its regulations. Under section 7123(c) of the Statute this Court does not have jurisdiction to consider any of the arguments advanced by the Agency because these arguments were not raised to the Authority. Moreover, to the extent that the Agency argues that the Authority erred in its final decision or procedures, the Agency did not take the appropriate action of seeking reconsideration with the Authority. In any event, even if this Court addresses the merits of the Agency's contentions, they are without merit and do not establish that the proposal is outside the duty to bargain or that the Authority failed to follow its regulations in this case. A. Inconsistency with the Standards of Ethical Conduct 1. This Court does not have jurisdiction to address the Agency's claim because the Agency did not raise that claim to the Authority The Agency makes detailed arguments to the Court that were never raised to he Authority in support of its allegation that the proposal is inconsistent with the Standards of Ethical Conduct. In sharp contrast with the one paragraph, unspecific, and unsupported assertions the FAA made to the Authority, the Agency now cites numerous regulatory provisions implementing the Standards of Ethical Conduct[7] and offers detailed arguments explaining how the regulations that it cites are inconsistent with the proposal at issue. Agency Br. pp.16-18. None of this specificity and information was offered to the Authority and accordingly, this Court lacks jurisdiction to consider the Agency's arguments that the proposal is inconsistent with specific provisions of the Government-wide regulation. "No objection that has not been urged before the Authority . . . shall be considered by the court [of appeals] . . . ." 5 U.S.C. § 7123(c). The "plain language [of section 7123(c)] evinces an intent that the FLRA shall pass upon issues arising under the [Statute]." EEOC, 476 U.S. at 23. This Court has repeatedly held that a party failing to make specific arguments to the Authority is foreclosed from making those arguments before the Court. See U.S. Dep't of Commerce v. FLRA, 7 F.3d 243, 245 (D.C. Cir. 1993) (rejecting the agency's claims that its general assertions "implicitly" raised an issue before the Authority) (Dep't of Commerce). Thus, the Court will refuse to consider even arguments that encompass a "somewhat different twist" to the argument advanced before the Authority. Overseas Educ. Ass'n, 827 F.2d at 820. Although the Court has recognized that "[p]resentations to courts on petitions for review may, and commonly do, expand upon the rationale underlying arguments made before the [Authority,]. . . it is still the [Authority's] judgment the court must review and one cannot expect that judgment to be forthcoming in the face of an imprecise or incoherent objection." Dep't of Defense, 982 F.2d at 580. Accordingly, when reviewing Authority negotiability determinations, this Court has refused to consider agency arguments that a proposal is inconsistent with a specific provision of law when the submission to the Authority was not as precise and failed to "cite the statute [37 U.S.C. § 418] and explain why [the statutory provision] removes the proposal from mandatory bargaining." Id. at 579-80. Here, the Agency's arguments submitted to the Court go far beyond those presented to the Authority. As a result, the Authority did not have the benefit of either parties' submissions specifically addressing the arguments that the Agency now makes to the Court.[8] Compounding the problem, the Court has been deprived of the benefit of the Authority's judgment on the matter, and is, in effect, required to perform the role of the Authority. Accordingly, this Court should decline jurisdiction to hear the Agency's arguments and objections that were not raised to the Authority. 2. The Agency did not request reconsideration in this case In urging the Court to address the merits of its arguments that the proposal is inconsistent with the Standards of Ethical Conduct, the Agency argues that the Authority's decision in this case is "incorrect as a matter of fact and law." Agency Br. p.18. If this is the Agency's position, it had ample grounds to move the Authority for reconsideration under the Authority's regulations. 5 C.F.R. § 2429.17. Pursuant to its regulation, the Authority will grant reconsideration after it has issued a final decision where a party has established that extraordinary circumstances exist. 5 C.F.R. § 2419.17. The Authority has found that extraordinary circumstances exist and granted reconsideration where a moving party has established, among other things, that evidence, information, or issues crucial to the decision had not been presented to the Authority, or the Authority has erred in its process, conclusion of law, or factual finding. U.S. Dep't of the Air Force and NAGE, Local R7-23, 50 FLRA 84, 86-87 (1995). In analagous cases, the Authority has granted reconsideration. See U.S. Dep't of Health and Human Services, Social Security Administration and AFGE, Local 1336, 39 FLRA 22, 25 (1991) (granting reconsideration because the Authority concluded that its decision was not based on the applicable regulatory provision). When reviewing the Authority's negotiability determinations, this Court has declined to entertain arguments not made to the Authority where an agency failed to seek reconsideration with the Authority, unless filing for reconsideration would have been futile. Dep't of Commerce, 7 F.3d at 245; cf. NLRB v. FLRA, 2 F.3d 1190, 1196 (D.C. Cir. 1993). Because the Agency failed to file such a motion and has not claimed it would have been futile to do so, this Court should properly decline to assert jurisdiction over the Agency's claims that the proposal is inconsistent with the specific regulatory provisions cited in the Agency's Brief. 3. The record does not demonstrate that the proposal is inconsistent with the Standards of Ethical Conduct The Agency, raising arguments that were never made to the Authority, asserts that it is "clear and blatant" that the proposal is inconsistent with the Standards of Ethical Conduct. Agency Br. p.20. Contrary to the Agency's claims, it is anything but apparent that the proposal is in conflict with the Government-wide regulation. Specifically, it is not clear, when comparing the Government-wide regulation to the proposal that: the proposal would impermissibly permit ATAs to solicit or accept the air travel; all aspects of the travel would be provided by a prohibited source; the travel constitutes a gift; or, the exceptions to the prohibition set forth in the regulation or other statutes would not apply.[9] The Agency argues that the proposal at issue is "flatly inconsistent" with Government-wide prohibitions on soliciting and accepting gifts. Agency Br. p.16. As a threshold matter, it is not a certainty that the proposal would implicate ATAs accepting or soliciting air travel from a prohibited source in violation of 5 C.F.R. § 2635.201. Although the proposal entitles individual ATAs to travel on commercial air carriers, private aircraft, and military air carriers at no expense to the ATAs for the ATAs' personal use, it is debatable whether it is the employees or the Agency who would be the recipients or the solicitors of the air travel. In this regard, it is reasonable to conclude that the Agency solicits the air carrier either when it establishes the national standardized familiarization program for ATAs required by the proposal or when it contacts an air carrier pursuant to an ATA's request for travel. In this respect, the travel may fall within 49 U.S.C. § 326(a), which permits the Secretary of Transportation to accept and use conditional or unconditional gifts of services in carrying out aviation duties and powers. The Agency alleges in its Brief (p.17) that the "commercial" air carriers on which the proposal would permit the ATAs to travel are regulated by the FAA and have an interest in the performance of ATAs' official duties. Thus, the Agency claims that the commercial air carriers would constitute a "prohibited source," within the meaning of 5 C.F.R. § 2635.203(b). However, the Agency does not make a similar allegation with regard to travel provided under the program by private aircraft or military air carrier. Apparently, the Agency is not contending that acceptance of travel by ATAs on noncommercial carriers is inconsistent with the Standards of Ethical Conduct, because it would not be provided by a "prohibited source." Thus even if the Agency's assertions are correct, certain aspects of the proposal are not challenged as inconsistent with the Standards of Ethical Conduct. Additionally, it is uncertain whether all of the air travel encompassed by the proposal necessarily constitutes a gift. The Standards of Ethical Conduct exclude from the definition of gift, any gift accepted by the Government under specific statutory authority, including "[t]ravel . . . accepted by an agency [not an individual employee,] under the authority of 31 U.S.C. § 1353 in connection with an employee's attendance at a meeting or similar function relating to his official duties which takes place away from his duty station." 5 C.F.R. § 2635.203(b)(8)(i). Contrary to the Agency's assertion that the proposal has no business purpose (Agency Br. p.14), Section 5 of the proposal provides, in part, that the program includes travel where the ATA is assigned duties at the outbound destination. JA 55-56. Alternatively, "[g]ifts authorized by supplemental agency regulation" are exempt from the prohibitions of the Standards of Ethical Conduct. 5 C.F.R. § 2635.204(k). Thus, the Agency may have within its discretion the ability to create a national standardized familiarization program that is not prohibited by the Standards of Ethical Conduct. Indeed this exemption may explain how FAM programs for ATCs are not inconsistent with the Standards of Ethical Conduct. The fact that such a program exists belies the Agency's claim that the proposal as applied to ATAs is "flatly inconsistent" with the Standards of Ethical Conduct.[10] In sum, even if this Court were to entertain the Agency's belated merits arguments, that it failed to make to the Authority, it remains far from certain that the proposal at issue is inconsistent with the Standards of Ethical Conduct. B. The proposal is not inconsistent with management's right to assign work The Agency asserts the Authority erred concerning the Agency's argument that the proposal was inconsistent with management's right to assign work. Agency Br. pp.22-23. Specifically, the Agency claims that the Authority improperly ignored the FAA's objection to the Union's original proposal as violative of management's right to assign work. In this regard, the Agency asserts that the FAA's objections to the proposal on this basis should have been considered by the Authority, notwithstanding the fact that the Union substantially modified its proposal and the fact that the Agency made no reference to its management's right argument in its Supplemental SOP. Moreover, the Agency asserts that to the extent that the proposal involves training, the Authority has uniformly held such proposals to be inconsistent with management's right to assign work. Neither of these arguments has merit. However, as a threshold matter, the Agency's assertions concerning the Authority's interpretation of the FAA's argument is not properly before this court. 1. This Court lacks jurisdiction to consider the Agency's allegations that the Authority misconstrued the FAA's position The Agency's assertion that the Authority improperly construed the FAA's position is not properly before this Court. As set forth in Section II.A.1. supra, the Agency's assertion that the Authority misconstrued the FAA's position has not been raised to the Authority and therefore, pursuant to section 7123(c) of the Statute, may not be raised in the first instance in this Court. Specifically, and as set forth in Section II.A.2., supra, if the Agency asserts that the Authority misconstrued the FAA's position, the Agency had an obligation to raise this issue, via a motion for reconsideration to the Authority, as a condition precedent to raising this objection before the Court. Dep't of Commerce, 7 F.3d at 245-46. Indeed, the Authority has previously granted agency motions to reconsider in analogous situations. See AFGE, Local 3673 and U.S. Department of the Navy, Naval and Warfare Center, 50 FLRA 720, 722 (1995)(Department of the Navy) (granting reconsideration where the Authority's conclusion that a regulation did not apply to a proposal was premised on the Authority's erroneous interpretation of contentions set forth in the agency's statement of position) (Department of the Navy). Here the Agency, makes a similar contention to that made in Department of the Navy -- that the Authority misinterpreted its arguments supporting its claim that the proposal was outside the duty to bargain. Thus, the Agency's assertions, made for the first time to the Court, could and should have been asserted in a motion for reconsideration with the Authority. 2. The Authority's construction of the Agency's arguments was reasonable and is entitled to deference Were this Court to nevertheless entertain the Agency's objection, the Authority reasonably construed the Agency's position as having relinquished its earlier management's right objection in light of the Union's modification of its original proposal. The Agency's Supplemental SOP, submitted in response to a modified proposal that deleted all references to training, referred to the proposal as a "new proposal" that did not contain any portions relating to training. JA 43. Further, in its Supplemental SOP, the Agency did not assert that the proposal, as modified, remained inconsistent with the FAA's management right to assign work. In fact, the Agency noted that the new proposal deleted all references to training. These circumstances, combined with the Union's withdrawal and modification of those portions of its original proposal which the Agency had asserted contravened its right to assign work (JA 34-35), led the Authority to reasonably conclude that the Agency's management right objections were no longer applicable because the modified proposal did not involve training. As such, the Court should reject the Agency's baseless assertion that the Authority failed "to engage in reasoned decision making." Agency Br. p. 23. Even if the Agency's pleading before the Authority in this case were subject to different interpretations, this Court has previously deferred to the Authority's interpretation in comparable cases. For example, in AFGE, Local 2303, the Court upheld the Authority's dismissal of a union's petition based on the Authority's characterization and interpretation of that petition. 815 F.2d at 722. In rejecting the union's challenge to the Authority's action, the Court noted that "an agency's interpretation of a written document is a determination of a question of law" which is entitled to due deference when the "interpretation implicates factors within the area of an agency's expertise." Id. at 719-20 n.11 (citing NLRB v. Hasbro Indus., 672 F.2d 978, 983-84 & 984 n.8 (1st Cir. 1982)). Like the Authority's interpretation in AFGE, Local 2303, the Authority's construction of the Agency's Supplemental SOP in this case is a reasonable and legal conclusion, clearly implicating the Authority's expertise in reviewing and interpreting parties' submissions. Consistent with AFGE, Local 2303, the Authority's determination is entitled to deference and affirmance. 3. The proposal does not involve training and is not inconsistent with management's right to assign work The Agency does not directly claim that the Union's modified proposal is violative of its management rights. Rather, the Agency asserts that the proposal "could be construed" as providing training benefits, and to that extent, it interferes with the right to assign work under 5 U.S.C. 7106(a) (2)(B). Agency Br. p.22. The Agency then broadly asserts that "proposals concerning training . . . are outside management's duty to negotiate." Id. Neither of these assertions has merit. The proposal was not construed as providing training benefits. As noted earlier, the FAA, in its two-page Supplemental SOP, stated three times that the Union's modified proposal deleted all references to training; the FAA went on to claim that because the proposal deleted all references to training, the air travel would result in its employees receiving an unauthorized free gift. JA 48-48A. Moreover, the Authority concluded that the Union had eliminated those aspects of the proposal related to training. JA 52 n.1. Given the Authority's and the Agency's interpretations of the Union's concession, there was no reason for the Authority to construe the proposal as offering a training benefit and, accordingly, it did not do so. Even if the proposal had been construed to in some respects involve training, it is not certain that the proposal, as modified, would have run afoul of management's right to assign work and thus fallen outside of the duty to bargain. It is true that as a general rule, proposals requiring formal training or assignments to specific types of training programs during duty hours have been declared outside the duty to bargain as inconsistent with management's right to assign work. See AFGE, Local 2094 and Veterans Admin. Medical Center, 22 FLRA 710, 719 (1986), aff'd on other grounds sub nom. AFGE, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987). However, the proposal here does not encounter such pitfalls. Section 6 of the proposal provides that the Agency will approve travel through the FAM program on approved leave days, regular days off, and for duty days only if the Agency assigns duties at the outbound destination. JA 56. Travel taken on approved leave days and regular days off does not run afoul of management's right to assign work because it is not taken during duty hours. With regard to travel taken on duty days, Section 5 of the proposal provides that the employee will be in "official travel status." JA 55. Moreover, the proposal does not require a training assignment. Rather, the proposal dictates the manner in which an ATA, in official travel status, will travel while engaging in a task that has already been assigned by the Agency. In short, it is by no means a certainty that the proposal, as modified, is inconsistent with management's right to assign work and therefore outside the duty to bargain. C. The Authority followed its regulations The Agency argues that the Authority failed to follow its own regulations and, therefore, this case should be remanded to the Authority. Agency Br. pp.23-26. The Agency's arguments in this respect -- as with its assertions that the proposal is inconsistent with both a Government-wide regulation and its right to assign work -- are not properly before this Court because the Agency has not previously raised this objection to the Authority. In any event, the Agency's contention that the Authority failed to follow its regulations is without merit. 1. This Court lacks jurisdiction to consider the Agency's allegations that the Authority failed to follow its regulations In its brief, the Agency asserts that the Authority failed to follow its regulations and precedent in this case. In the Agency's view, the Authority was obliged to dismiss the Union's negotiability petition because the Union failed to set forth the meaning of the proposal, provide an explanation of how the proposal would operate, or serve the Agency with a copy of the modified proposal. Agency Br. pp.23-25. However, a review of the Agency's submission to the Authority demonstrates that the FAA never raised these objections to the Authority. JA 43-45; 48-48A. Moreover, the Agency did not file a motion for reconsideration under 5 C.F.R. § 2429.17 asserting, after the Authority had issued a final decision, that the Authority had failed to follow its regulations in this case. The Authority has previously granted motions for reconsideration in analogous situations. See AFGE, Local 3601 and U.S. Dep't of Health and Human Services, Public Health Service, 38 FLRA 177, 181 (1990) (Public Health Service) (granting reconsideration where agency asserted that the Authority's decision was not in accord with Authority's regulations because union failed to serve agency with copy of union's amended negotiability petition). Here, the Agency's arguments regarding the Authority's failure to follow its regulations involve a claim, like that raised in Public Health Service, that the Authority erred in its process. As such, the Agency's argument could and should have been raised in a motion for reconsideration under 5 C.F.R. § 2429.17. As set forth in Section II.A.1, supra, under 5 U.S.C. § 7123(c) "[n]o objection that has not been urged before the Authority . . . shall be considered by the court [of appeals] . . . ." Section II.A.2., supra, notes that the Agency had an obligation to raise this issue, via a motion for reconsideration to the Authority, before raising this objection before the Court. 2. The Authority acted consistent with its regulations and precedent As noted in the preceding subsection, the Agency contends that the Authority was obliged to dismiss the Union's negotiability petition in this case. Specifically the Agency argues that the Authority erred by: failing, as its regulations required, to demand additional information and/or dismiss the union's deficient petition (Agency Br. pp.23-24); acting inconsistently with Authority precedent (Agency Br. pp.25-26); and holding the FAA responsible for the petition's deficiencies (Agency Br. pp.25-26). Assuming the Court were to entertain these arguments that were not made to the Authority, none of them has merit. In asserting that the Authority failed to follow its regulations in this case, the Agency misinterprets the intent of the Authority's regulations and, in so doing, attempts to substitute its judgment for that of the Authority. It is correct, and the Authority noted, that the Union failed to "explain[] how the proposal [was] intended to operate." JA 55. However, the Agency here disregards that the reason for requiring the Union to explain the proposal is to "enable the Authority to understand the . . . proposal." 5 C.F.R. § 2424.4(a)(2)(ii). Here the plain wording of the proposal was clear and the Authority articulated how every section of the proposal would operate and did not indicate an inability to understand the meaning of the proposal. JA 55.[11] As such, the Union's failure here did not impede the Authority from understanding the proposal. Even though the Agency might have desired different procedural determinations and action by the Authority, the course of action now demanded by the Agency was, in the Authority's view, unnecessary. And, an administrative agency's interpretation of its own regulation is entitled to substantial deference. Exxon Corp. v. FERC, 114 F.3d 1252, 1258 (D.C. Cir. 1997). Nor did the Authority act inconsistent with its precedent. To be sure, as the Agency asserts (Agency Br. pp.25-26), the Authority has dismissed negotiability petitions where unions failed to explain the proposal at issue. However, in all the cases cited by the Agency, the Authority was unable, as a result of the union's failure to define or explain the proposal, to understand the import of the proposal at issue. See AFGE, Dep't of Educ., 38 FLRA at 1106; AFGE, Local 3760 and Dep't of Health and Human Services, Social Security Administration, 33 FLRA 498, 501 (1988); NFFE, Local 15 and Dep't of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, IL, 30 FLRA 1046, 1076 (1988). Here, by contrast and as noted in the preceding paragraph, the Authority was able to discern how the proposal would operate and therefore, in its discretion, determined not to seek further information or dismiss the petition. Finally, the Agency incorrectly claims that the Authority "shifted the blame for the Authority's inability to comprehend the proposal to the FAA." Agency Br. p.26. But as has already been pointed out, the Authority, based on the record before it, did understand the proposal at issue. What the Authority was not able to discern, based on the FAA's bare, unsupported assertion in the record, was how the proposal at issue was inconsistent with a Government-wide regulation. As a result, the Agency was held accountable for its own failure to support and explain its contentions in this case. CONCLUSION For the foregoing reasons, the Agency's petition for review should be denied. Respectfully submitted. DAVID M. SMITH Solicitor SARAH WHITTLE SPOONER Attorney Federal Labor Relations Authority 607 14th St., N.W. Washington, D.C. 20424 (202) 482-6620 DATE: March 1998 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _______________________________ U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C., Petitioner v. No. 97-1522 FEDERAL LABOR RELATIONS AUTHORITY, Respondent _______________________________ CERTIFICATE OF SERVICE I certify that the original and fifteen copies of the Brief of the Federal Labor Relations Authority have been served this day, by mail, upon the following counsel: William Kanter, Esq. Robin M. Richardson, Esq. Appellate Staff Civil Division, PHB Room 9606 Department of Justice 601 D Street, N.W. Washington, D.C. 20530-0001 Janet L. Smith Paralegal Specialist I certify that the Brief of the Federal Labor Relations Authority does not exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d). Sarah Whittle Spooner Attorney [1] Pertinent statutory provisions are set forth in Addendum A to this brief. [2] "JA" references are to the Joint Appendix filed by the petitioner. [3] The national standardized familiarization program is an existing program established pursuant to FAA Order 7210.3 for air traffic specialists, a category which includes ATCs. JA 29, 36. The program permits participants to fly in the cockpit of an air carrier, a private aircraft, or a military aircraft so that they may observe the operation of the air traffic system from that environment. JA 7. [4] The Authority also places burdens on the union consistent with those placed on the agency. See Section II.C., infra. Specifically, the Authority may dismiss a petition for review where the union files an incomplete petition for review and fails to respond to requests to complete the record. 5 C.F.R. § 2424.4. See e.g., AFGE, AFL-CIO, Local 3760 and Dep't of Health and Human Services, Social Security Administration, 32 FLRA 813, 815 (1988) (the petition for review did not contain a description of the work situation that would enable the Authority to understand the context in which the proposal would apply) (AFGE, Local 3760). And where a union fails to meet its burden with regard to its response to the agency's statement of position, the Authority will accept an agency's uncontroverted factual assertions. See NFFE, Local 1167, 681 F.2d at 886. [5] Even if the Authority were to order an Agency to bargain over a proposal that is inconsistent with law, the Agency has the regulatory right to request that the Authority reconsider its decision. 5 C.F.R. § 2429.17. See Section II.A.2., infra. [6] In fact, whether the proposal is inconsistent with the Government-wide regulation is anything but clear. See Section II.A.3, infra. [7] In its zeal to attack the propriety of the proposal, the Agency also cites to various provisions of the United States Code (5 U.S.C. § 7353 and 49 U.S.C. § 326(a)) (Agency Br. pp.16, 21) that were never referenced by the FAA in its submission to the Authority. Thus, the Agency inferentially suggests that the Authority was obliged to, sua sponte, research and evaluate Title 5 and 49 as well as Part 2635 of Title 5 of the C.F.R. [8] Because of this, any response to the Agency's arguments at this time will amount to nothing more than post hoc rationalizations of Authority counsel. U.S. Dept. of Veterans Affairs v. FLRA, 1 F.3d 19, 23 (D.C. Cir. 1993) ("As a rule, 'courts may not accept appellate counsel's post hoc rationalizations for agency action.'") (citing K N Energy, Inc. v. FERC, 968 F.2d 1295, 1303 (D.C. Cir. 1992)). [9] On declining to perform an independent review of the Government-wide regulation, the Authority noted many of these unaddressed questions as another reason for rejecting the Agency's bare and unsupported assertion that the proposal contravened the Standards of Ethical Conduct. JA 54 n.2. [10] Similarly unpersuasive is the Agency's submission of a report created by the Department of Transportation's Office of Inspector General regarding the FAM program as established for ATCs. Agency Br. p.9 n.6. According to the Agency, that report helps to illustrate how a "bona fide training program poses the risk of significant abuse in contravention of the Standards of Ethical Conduct." Id. However, the Agency's reliance on that report does not advance its arguments here. First, the program as established for ATCs is not at issue in this case. Second, nothing in the report indicates that the ATC program constitutes a gift under or is otherwise inconsistent with the Standards of Ethical Conduct. In this regard, the report does not cite any provision in 5 C.F.R. Part 2635. Rather, according to the report, it is the failure to follow established policy and procedures that is "creating the appearance" that the Standards of Ethical Conduct are being violated. Agency Br., Addendum p.25a. The fact that the FAA has failed to follow procedures in a program established for ATCS does not render the proposal at issue inconsistent with the Government-wide regulation. [11] Moreover, neither the Union nor the Agency has asserted that the Authority failed to properly interpret the meaning of the proposal.