OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second
Street, S. E.
Washington, D. C. 20540-1999
OF TEAMSTERS LOCAL UNION
NOS. 246 AND 639, AFL-CIO
Case No. 03-LM(AC)-01
and Date: July 11, 2003
OFFICE OF THE SENATE
SERGEANT AT ARMS,
DECISION AND ORDER
The Petitioner labor organization seeks to amend
the December 19, 2002 certification for the Employing Office's Capitol
Facilities Branch to substitute Teamsters Local 639 for Teamsters
Local 246 as the certified exclusive bargaining representative.
The Petitioner asserts that Local 246 merged with Local 639.
The Employing Office filed "Objections to
Petition for Amendment to Certification of Representative,"
and contends that (1) procedurally the Office's Executive Director,
or his designee, lack authority to investigate the petition; and
(2) substantively the petition should be denied.
We have determined, for the reasons stated below,
that the Employer's procedural argument lacks merit. We, therefore,
direct the Executive Director, or his designee, to investigate the
issues arising from the petition. Absent a consensual resolution
or petition withdrawal, the Board will decide the merits issue following
the completion of the aforementioned investigation.
II. PARTIES' POSITIONS
The Employing Office interprets Section 220(c)
of the Congressional Accountability Act ("CAA"), 2 U.S.C.
§1351(c), to authorize only the Board, or the Office's General
Counsel, by Board direction, to investigate representation-related
petitions encompassed by 5 U.S.C. §7511. The Employing Office
submits that Section 220(c), in requiring
that any petition or submission be submitted to the Board, but permitting
the Board to direct that the General Counsel carry out the Board's
investigative authorities under that paragraph, "limited the
Board's authority to delegate its investigative responsibilities,
and the Board may delegate those responsibilities only to the General
Counsel." Accordingly, the Employing Office argues that the
Office's promulgated regulation (§2422.30: 142 Cong. Rec. S11642-01[Senate
Approval, September 28, 1996]; 142 Cong. Rec. H9898-02 [House Approval,
August 2, 1996] assigning this representation investigation function
to the Executive Director, conflicts with the CAA and therefore
is "unenforceable and cannot stand."1
The petitioner expressed no position on this
procedural issue and confined its response to the merits of its
amendment to certification petition.
Section 220(c)(1) imbues the Board with the authority
of the Federal Labor Relations Authority under 5 U.S.C. §7511,
inter alia, to investigate representation
petitions; while Section 220(c) of the CAA provides
that the Board "may" direct the General Counsel to carry
out the Board's investigative function under the paragraph.
In contrast, section 220(c)(1) mandates that the Board "shall
refer any matter under this paragraph to a hearing officer for decision
. . ." pursuant to section 504 ((b)-(h)).2 The use
of the permissive form regarding investigatory delegation to the
General Counsel and the mandatory form concerning hearing officers
intimates the Congressional intent to permit alternative investigatory
The Office's Labor-Management Regulations are
substantive regulations, adopted under the published rulemaking
and comments process, pursuant to CAA Section 304 (2 U.S.C. §
1384). These regulations which, inter alia,
authorize the Board to assign representation petition investigations
to the Executive Director, were promulgated on October 1, 1996 (142
Cong Rec S 12062), as a result of House approval (H. Res. 504, H.Con.
Res. 207) and Senate approval (H. Con. Res. 207, S. Res. 304). Therefore,
since the inception of this Labor-Management program, Congress approved
the Board's assignment to the Executive Director, or his/her designee,
the representation petition investigatory tasks; while the Board
maintained the ultimate decision- making function. The Executive
Director serves as the Office's Chief Operating Officer and carries
out the responsibilities of the Office under the CAA, except as
otherwise specified in the Act. Section 302(a)(4), CAA. The Executive
Director has processed and investigated all representation petitions
throughout the seven year history of this program.
It is well established that agency regulations
promulgated pursuant to delegated legislative authority have the
force and effect of law. See Pierce Administrative
Law Treatise (4th Ed.), Section 6.2 Agency Power to Issue
Rules; U.S. v. Storer Broadcasting Co.,
351 U.S. 192 (1956); National Broadcasting
Co. v. U.S., 319 U.S. 190 (1943). Such regulations are given
controlling weight unless they are arbitrary, capricious or manifestly
contrary to the statute. Chevron U.S.A.
v. National Resources Defense Council et al., 367 U.S. 837,
843-844 (1984). Reviewing courts tend to grant deference to agency
regulations, such as those under challenge herein, issued following
a notice and comment rulemaking process. Kay
Coles James v. Elisabeth von Zemenszky, and Merit Systems Protection
Board, 301 F.3d 1364, at 1365 (Fed. Cir. 2002). If the intent
of Congress is clear, that is the end of the matter, for the agency's
implementing regulations and the reviewing court must give effect
to the unambiguously expressed intent of Congress. If Congressional
intent is not clear, courts ordinarily will defer to an agency's
construction of a statute it is charged with enforcing if it is
reasonable and not in conflict with the expressed intent of Congress.
U.S.A. v. Louise Mango, 199 F.3d
85 (2nd Cir. 1999), citing United States
v. Riverside Bayview Homes, Inc., 474 U.S 121, 131(1985);
National Labor Relations Board v. Oklahoma,
No. 01-9516 (10th Cir. June 18, 2003).
As noted by United States District Court Judge
Riccardo M. Urbina, and discussed, supra,
CAA Section 220(c)(1) is not unambiguous and it has some inherent
ambiguities. U.S. Capitol Police Board
v. Board of Directors of the Office of Compliance, et al.,
Civil Action: 96-cv-2256 RUM (D.D.C., November 15, 1996). While
we respectfully disagree that any ambiguity exists regarding the
Board's authority to delegate representation case investigative
functions to the Executive Director, the Board validly acted to
resolve any such ambiguity through its subject substantive regulations.
The Congressional approval of those regulations effectively clarified
and resolved any extant ambiguity.
The Board's explicit discretionary statutory
authority to direct the General Counsel to investigate representation
petitions is not at odds with the Office's substantive Labor-Management
Regulations, promulgated pursuant to CAA Section 220(d), which assigned
that function to the Office's Executive Director. CCA Section 220(c)
is reasonably read as a permissive authorization to the Board subject
to an alternative arrangement pursuant to the Board's substantive
rulemaking authority under Section 304 of the CCA. See U.S.
v. Storer Broadcasting Co., 351 U.S. 192, 195 (1956); National
Petroleum Refiners Assoc. v. FTC, 482 F.2d 672, 689 (D.C.
Cir. 1973). Moreover, the Courts have been sensitive to the real
world need of federal agency heads and administrative tribunals
to redelegate their operational, but not ultimate decisional authority,
to lower level officials within their organizations. See,
e.g., NLRB v. Duval Jewelry Company of Miami, 357 U.S. 1
(1958); Fleming v. Mohawk Wrecking &
Lumber Co., et al. 331 U.S. 111 (1947); U.S.A.
v. Louise Mango, supra; NLRB v.
John S. Barnes Corp., 178 F. 2nd 156 (7th Cir. 1949).
The Employing Office relies upon Halverson
v. Slater, 129 F.3d 180 (D.C. Cir. 1997), where the Court
of Appeals held that a controlling statute authorizing the Secretary
of Transportation to delegate certain powers to Coast Guard officials
prohibited him from delegating those powers to non-Coast Guard officials.
That case is distinguishable from that sub
judice because it involved a delegation to a completely distinct
organization from that of the Coast Guard. Moreover, subsequently
the Court of Appeals for the District of Columbia articulated that
the controlling maxim - expressio unius
est exclusio alterius ("the mention of one thing implies
the exclusion of another") - is often misused.:
[S]ometimes Congress drafts statutory provisions
that appear preclusive of other unmentioned possibilities just
as it sometimes drafts provisions that appear duplicative others
simply, in Macbeth's words, "to make assurance double sure."
That is Congress means to clarify what might be doubtful that
the mentioned item is covered without meaning to exclude the unmentioned
ones. [citation omitted]. The maxim's force
in particular situations depends entirely on context, whether
or not the draftsmen's mention of one thing, like a grant of authority,
does really necessarily, or at least reasonably, imply the preclusion
of alternatives. That will turn on whether, looking at the structure
of the statute and perhaps its legislative history, one can be
confident that a normal draftsman when he expressed "the
one thing" would have likely considered the alternatives
that are arguably precluded. For that reason, we think the maxim
should be used as a starting point in statutory construction not
as a close-out bid.
Karen Shook, et al. v. District of Columbia
Financial Responsibility and Management Assistance Authority,
132 F.3d 775, 782 (D.C. Cir. 1998).[emphasis supplied].
The Court of Appeals' Shook
decision, with particular resonance herein,distinguished between
an agency delegation of power to an "outsider," in contrast
to its executive director and small professional staff under the
agency's control and supervision. 132 F.3d 775, 784. The Office
of Compliance Executive Director is an arm of the Board. See, CAA
Section 302(a), 2 U.S.C. §1382(a). Morever, the Board, in this
regard, has delegated only ministerial investigatory functions to
the Executive Director. Significantly, we find that the doctrine
of expressio unius est exclusio alterius
is not applicable to this situation because CAA Section 220(c)(1)
did not express a mandatory delegation authority; it simply provided
that the Board "may" delegate the investigative authority
to the General Counsel.
While the Chair, with Board approval, appoints
the General Counsel, the Board only may remove the General Counsel
for specified cause and through the Speaker of the House of Representatives
and the President pro tempore of
the Senate. Section 302(c), CAA. Unlike the Executive Director,
whose role is to serve the Board and operate the Office, the General
Counsel maintains an independent role in prosecuting cases before
the Board pursuant to Sections 210, 215 and 220 of the CAA. The
General Counsel is also authorized to petition for judicial review
from Board decisions that are not in his/her favor. Section 407(1)(C)&(D),
In enacting the CAA Congress clearly did not
intend to preclude the Board from assigning the investigation of
representation petitions to its Executive Director or his/her designee.
The Executive Director and his/her two statutory deputies are appointed
and may be removed by the Chair, subject to Board approval. Sections
302(a) & (b), CAA. The Executive Director serves as the Office's
Chief Operating Officer, and carries out of the responsibilities
of the Office under the CAA except as otherwise specified in the
Act. Section 302(a)(4). The Executive Director and his/her staff
are a direct adjunct to the Board and report to the five- person
Board, which serves on a per diem
The Executive Director's functions are integral
and fully answerable to the Board. In this respect, with the Board's
authorization, the Executive Director provides the Board with supportive
services that a per diem Board realistically could never be expected
personally to perform; e.g., the labor-intensive tasks of processing
and investigating representation case petitions, conducting elections,
etc.. It is a common practice for administrative tribunals to assign
such ministerial functions to its lower level officials.
In Section 220(c) Congress specifically permitted
the Board to assign its investigatory function to the General Counsel,
even though the Board and the General Counsel stand at arms length
when the General Counsel exercises his/her prosecutorial authority.
This additional option for investigatory assistance in no way imports
that Congress wished to deprive the Board of the services of its
Executive Director in performing that fact gathering function.
The Employing Office brief also does not reflect
that in November 1996, in U.S. Capitol
Police Board v. Board of Directors of the Office of Compliance,
et al., Civil Action.: 96-cv-2556 RMU (D.D.C., November 15,
1996), the U.S. Capitol Police Board unsuccessfully sought a district
court temporary restraining order to prevent the Executive Director
from conducting a representation petition investigatory hearing.4
The employing office argued there, as in this case, that the Executive
Director was acting ultra vires
because the Board lacked authority to assign the investigative function
to its Executive Director.
The district court concluded that it lacked subject
matter jurisdiction over the case. In ruling, U.S. District Court
Judge Ricardo M. Urbina stated: "I note that Section 220(c)(1)
of the CAA is not clear, and it is not unambiguous, as suggested
by the plaintiff. To the contrary, I find looking at it and its
context and based on what's been provided here and what counsel
have said about it, it has some inherent ambiguities." [Transcript
of TRO Telephone Hearing Before the Honorable Ricardo M. Urbina,
November 12, 1996, Tr. 38]. Therefore, the Court rejected the Police
Board's identical argument that section 220(c)(1) lodges no discretion
with the Board to assign representation case investigations to the
Executive Director. Based upon the foregoing, we conclude that the
Employing Office's procedural objection lacks merit.
The Employing Office's procedural objection is
overruled. The Executive Director, or his designee, is directed
to investigate this amendment to certification petition.
IT IS SO ORDERED.
Issued, at Washington, D.C.: July 11, 2003
I hereby certify that on this 11th day of July
2003, I delivered a copy of this Decision and Order of the Board
of Directors to the following parties by the below identified means:
First-Class Mail Postage-Prepaid
& Facsimile Mail
Jean M. Manning, Brenda J. Pence, Robert L. Rogers,
Office of Senate Chief Counsel for Employment
Senate Hart Building, Room 103
Washington, D.C. 20510-7130
Facsimile: (202) 228-2557
E. Lindsey Maxwell II, Esq.
Beins, Axelrod, Kraft, Gleason & Gibson, P.C.
1717 Massachusetts Avenue, N.W., Suite 704
Washington, D.C. 20036
First-Class Mail Postage-Prepaid
Mr. Terrence Edwards
Teamsters 639 Center
Washington, D.C. 20018
Kisha L. Harley
Office of Compliance