BUREAU OF ALCOHOL, TOBACCO & FIREARMS v. FLRA

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ORAL ARGUMENT OF MS. CAROLYN CORWIN, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: Ms. Corwin, you may proceed whenever you are ready.

Ms Carolyn Corwin: Mr. Chief Justice, and may it please the Court:

The question presented by this case is a straightforward one.

It is whether Congress intended for union dues or the federal taxpayers to fund the travel expenses and per diem of federal employees who represent their unions in collective bargaining.

Federal agencies pay such expenses for their own representatives at collective bargaining sessions.

The question here is whether the Respondent.

The Federal Labor Relations Authority, correctly concluded that Congress also meant for the agencies to fund the similar expenses of the union representatives to those sessions.

The statute the Court must construe in this case is Title VII of the Civil Service Reform Act passed by Congress in 1978.

Title VII establishes a statutory framework for the federal labor management relations program.

That program formerly had been governed by executive order, and under the executive order program the unions bore their own travel expenses and per diem.

There was no entitlement under the executive order program to any reimbursement from federal agencies for those expenses.

Title VII sets out a series of detailed provisions governing the federal labor relations program.

None of those provisions addresses the subject of travel expenses and per diem.

The Authority has cited Section 7131 of the statute, and that section relates to authorization of official time for employee union representatives.

In Section 7131 Congress went quite far in subsidizing the collective bargaining process in the federal sector by providing for federal payment of the salaries of the employee union negotiators.

The question here is whether the Respondent, the FLRA, correctly concluded that Congress meant to go further in subsidizing the collective bargaining process by funding another category of expenses, the travel expenses and per diem of the employee union representatives.

Unidentified Justice: Ms. Corwin, in 7131(a) where the statute says that the employee representative, exclusive representative, shall be authorized official time for such purposes, does that mean anything more than that his federal salary will be paid during those and he will not have to take leave?

Ms Carolyn Corwin: That is the understanding.

The term "official time" is one that had grown up within the federal labor relations program under the executive order.

It had always been understood to connote payment of salary.

Now it also meant that you did not lose time in terms of accruing other benefits such as pension rights and so on, but the basic principle was that official time meant payment of your salary.

Unidentified Justice: Does that mean travel time?

Ms Carolyn Corwin: It did not mean travel time under the executive order program, and we suggest that the term "official time" as it grew up in the labor relations program indicated that you did not have this right to federal reimbursement of your travel time.

Unidentified Justice: Did it not at least mean that you were on official business?

Ms Carolyn Corwin: No, it definitely--

Unidentified Justice: You mean they were paying the employee when he was on unofficial business?

Ms Carolyn Corwin: --The understanding of official time was that the salary was paid--

Unidentified Justice: Because why?

Ms Carolyn Corwin: --There were several reasons that... Are you referring to the old executive order program at this point?

Unidentified Justice: I am referring to the statute we are construing.

Ms Carolyn Corwin: The statute we are construing uses the term "official time" as it was used under the executive order program and that is why--

Unidentified Justice: Well, why do you think Congress would authorize unlimited time for collective bargaining purposes and pay for it?

Ms Carolyn Corwin: --Well, I think there are several rationales that Congress probably had in mind.

Unidentified Justice: Did they say which one they had in mind?

Ms Carolyn Corwin: In the legislative history of the 1978 Act you do not have any statement of why it was that Congress concluded... For example, in the House report you do not have any explanation of why they incorporated this.

What they were in fact doing was extending the provisions under the executive order program in which official time had been available up to a particular ceiling.

Now under the executive order program the reasoning had been that it prevented delay.

It was easier to schedule sessions if you gave people some time off and it minimized the individual hardship.

Unidentified Justice: So I suppose they were paying them either because they considered it official business or because they thought it was in the public interest to subsidize collective bargaining.

Ms Carolyn Corwin: Well, I think there were several considerations, but the assumption that it was official business was not one of them.

Under the executive order program--

Unidentified Justice: How do you know?

Ms Carolyn Corwin: --The Comptroller General had been asked this question early on in the executive order program.

Unidentified Justice: Is he the final interpreter of congressional intent?

Ms Carolyn Corwin: The Comptroller General had been consulted in his capacity as the individual who makes rulings on expenditures of federal funds, and his conclusion was under this executive order program even if an employee was granted official time, that is, even if his salary was paid that did not translate into official business for the federal government, that in essence the employee--

Unidentified Justice: What was the rationale for paying the salary?

Ms Carolyn Corwin: --Well, several rationales were suggested in the various reports underlying the executive order program.

One was--

Unidentified Justice: Did the Comptroller General say what it was?

Ms Carolyn Corwin: --Well, the Comptroller General in ruling on the official business point suggested that even though it had been stated in the executive order that collective bargaining might be in the public interest, it was nevertheless not equivalent to official business.

I do not think the Comptroller General cited the reports I am referring to that refer to the grant of official time in terms of solving scheduling difficulties and in terms of solving the individual hardships that might arise.

Unidentified Justice: But that was... They surely must have been concerned with making collective bargaining work.

Ms Carolyn Corwin: That is certainly true, and I think that has always been the case under the federal labor relations program that that clearly was a concern that Congress had in the 1978 Act.

But I do not think that translates into any sort of mandate for reimbursement of all expenses underlying collective bargaining, and I think that is what the Court needs to consider in determining whether Congress without ever making any mention of the subject has authorized these sorts of expenses to be paid.

Unidentified Justice: Well, surely the federal government is doing something with respect to collective bargaining representatives that industry does not do, or does industry do the same thing?

Ms Carolyn Corwin: No, this is not the practice in industry.

The examples that were before Congress in 1978 did not include any example in which the employer would fund the collective bargaining expenses of the union.

Unidentified Justice: Even by paying salaries?

Ms Carolyn Corwin: The only instances in which that occurred would be when the parties had agreed to it through a negotiation of a collective bargaining agreement.

Unidentified Justice: Well, then the government does subsidize the process to an extent that private industry does not.

Ms Carolyn Corwin: That is so, and in 1978 I think you have a very careful consideration by Congress in determining what it ought to put into this legislation about how far it ought to go in terms of--

Unidentified Justice: By using that word "official time"?

Ms Carolyn Corwin: --Well, I think the terminology "official time" is what they picked up from the old executive order program, and I think it is significant that they used that term as opposed to some other term they might have used.

But you have the very careful consideration in 1978 about how much farther than the executive order program you ought to go and to what extent the federal government ought to be subsidizing the collective bargaining process.

In essence what Congress did was to provide this subsidy of the salary expenses, but it did not go further.

Now we think there are numerous indications that Congress itself did not intend this sort of requirement and moreover that it did not intend to delegate any sort of discretion to the Federal Labor Relations Authority to impose that sort of requirement either.

I will summarize those points briefly.

First, as I have mentioned there is total silence in the language in legislative history, and that silence occurs in the context of both the existing federal sector practice and the private sector practice in which unions bore their own expenses of collective bargaining.

Secondly, as I referred in response to Justice White's question the use of the term "official time" is significant.

That is a term that had a particular meaning in the context of the federal labor relations program.

Congress picked up that term.

Third, what you have here is the Authority reading into the statute a requirement that has the effect of imposing a monetary liability on the federal government, and you have that reading in the absence of any expression of congressional intent that it meant to go further and to provide this sort of subsidy in addition to what it had provided for in the terms of the statute.

Unidentified Justice: May I ask you a question right there?

If one draws an analogy to the Labor Relations Board in the private sector, we habitually give a great deal of deference to the agency that administers the statute.

I am not sure I understand what your position is with respect to the degree of deference that should be paid to this agency or what our standard of review is.

Do we just approach it as a brand new question of statutory construction, or do we attach some weight to the fact that this agency was created by Congress and perhaps was authorized to make decisions of this kind?

Ms Carolyn Corwin: Well, I think the general principle that you have set out is one with which we agree that an administrative agency normally does deserve deference.

I think there are several points to consider here.

First, I think even if one gave the maximum deference to the agency in this case it would not overcome the indications I have suggested that Congress simply did not intend to go this far and did not intend the Authority to be able to--

Unidentified Justice: What if we were persuaded that the Congress just never thought of this problem?

Ms Carolyn Corwin: --Well, I think that there are several other points that you ought to consider in determining whether deference is due if that is the concern here.

I think in addition to the points I have suggested concerning what Congress may have had in mind you ought to consider the point about imposition of monetary liability on the federal government.

Unidentified Justice: Will it not always be true that in the labor disputes that this agency has jurisdiction that there will always be a potential for imposing costs on the sovereign and, therefore, every time it rules against the government they are not entitled to deference?

Ms Carolyn Corwin: No, I think that is not the case because Congress clearly had in mind that the remedies ordered by the Authority would involve things like back pay, and it did include within Title VII a specific reference to the Back Pay Act because it anticipated that this sort of award was going to come up on a regular basis.

It referred to the Section 5596.

The Back Pay Act, which is outside of Title VII.

Here you do not have any reference to the particular Chapter 57 that relates to travel expenses and per diem so you do not have Congress making the same sort of cross-reference indicating that it acknowledged that there would be some sort of monetary liability, and I think that is another point that the Authority here felt it necessary to go outside of the limitations of its own statute, outside of Title VII and to refer to Chapter 57 which is not within its responsibility for construction.

Rather it is within the General Service Administration's realm of authority.

I think another point to consider when you determining the deference that is due here is that the particular statutory scheme is one in which Congress did not leave much in the way of gaps or interstices for authority to fill.

You have quite a detailed blueprint here which was the product of some very careful consideration by Congress about how far it ought to go.

It was urged on the one hand to stick with the old executive order program and simply to codify that.

On the other hand, it was urged to go much further in the direction the employee unions wanted it to go.

Unidentified Justice: Ms. Corwin, you have given me the reasons why they should get less deference than agencies often get.

What is the degree of deference that you think this agency is entitled to with respect to this issue if we conclude that Congress did not think of this particular problem?

Are they entitled to any deference at all?

Ms Carolyn Corwin: I do not think that under the circumstances of this particular case that the Authority ought to receive any deference because of the principle that in the case of imposition of monetary liability on the federal government the presumption of this Court has always been that one does not read that into the statute absent some expression of congressional intent, but I think even if the Court did determine that there ought to be some deference it is not enough to overcome the indications of that principle and other indications that suggest that Congress did not--

Unidentified Justice: Put your answer to my question really is they are not entitled to any deference?

Ms Carolyn Corwin: --That would be our position under the circumstances of this particular case.

Unidentified Justice: But in effect they are construing a statute that is committed to the Comptroller General rather than to them.

Ms Carolyn Corwin: I think that is one point that they have gone outside of their own statute and that diminishes any deference.

I think the point of what they are doing imposes this monetary liability.

It is something that brings this other principle of statutory construction into play.

Unidentified Justice: I thought you were... You really said earlier that you thought the Congress had really addressed it in the sense that it had limited the subsidization to official time and that that is a term of art.

Ms Carolyn Corwin: I think that is correct.

In using the term "official time" I think you have to conclude that Congress must have intended it to be official time as it was known to the federal--

Unidentified Justice: And as though it said and no more.

Ms Carolyn Corwin: --Yes, I think this is a statute which Congress considered quite carefully how far to go, and as I was suggesting to Justice Stevens there were people who were urging it to go much further.

There were people who were urging it to do much less than it did, and the result is a rather detailed blueprint of the way Congress wanted this labor relations program to work.

There was provision of a certain subsidy, a rather generous subsidy in the form of the salaries, but there was then no further step.

Unidentified Justice: That is all.

This is somewhat like the rule that if you are on the subject matter and you include one and do not take the other then that is an inference you intended to omit it.

Ms Carolyn Corwin: I think that general principle is certainly applicable here, but I think in this particular context in this statute you do have rather careful consideration about whether the Congress ought to go further in terms of subsidizing unions and subsidizing collective bargaining.

The fact that they did not take the step in this case I think is particularly significant.

I think one has to also consider the fact that the statute reflects the fact that Congress was aware that there was a source of union funds out there that unions would have dues with which they could pay such expenses and with which they had paid the expenses all along.

It seems to me that given the assumption that unions would have dues and that Congress was aware of this, it is even more inappropriate to assume that Congress without making any mention at all somehow felt it was appropriate to add on or that the Authority itself ought to go further and add on some sort of financial requirement that would shift the expenses from where they normally would fall and where they always had been to the federal agencies.

Now all of these considerations I have mentioned have led all of the Courts of Appeal that have considered the issue other than the court below to conclude that the Authority exceeded its statutory discretion, exceeded its statutory authority in this case, and we think that is the proper conclusion based on these considerations I have suggested.

Now I would like to briefly turn to the alternative argument that the Authority and Respondent, NTEU, have put forward and that is the argument that collective bargaining is somehow equivalent to be on-the-job or on-duty status and that that in turn leads to the conclusion that there is official business here and then you in turn reach the conclusion that travel expenses and per diem were intended under the statute.

I think that the language of the statute simply does not amount to what Respondents are arguing.

Congress could have written Section 7131 with different language.

It could have said collective bargaining amounts to being on-duty status.

Better yet it could have said collective bargaining for the purposes of Chapter 57, the part that relates to travel expenses and per diem outside of Title VII, collective bargaining shall constitute official business.

It did not say any of these things.

Rather the language that Congress did use was and the term of art "official time" which had this construction under the old program of no travel expenses, no per diem, that is, the unions for those costs and Congress also referred to the time an employee otherwise would be in a duty status.

Now that language suggests that you simply cannot draw out the equivalency of collective bargaining and duty status that Respondents have suggested in this case, and we think the medley of various agency regulations and decisions that they have cited from different statutes and different periods of time simply do not add up to the conclusion they have drawn.

I think if you look individually at those particular references and look at them collectively they do not lead you to the conclusion that collective bargaining is the same as being on the job or that Congress intended the Authority to be able to so define it.

Ultimately in this case you keep coming back to the conclusion that the federal employee unions did not succeed in persuading Congress or in moving Congress to the point at which it concluded that there ought to be a federal subsidy for these particular expenses.

You have Congress silent on the subject in the face of the existing practice in both the private sector and the federal sector under which the unions bore their own expenses under which each side to the collective bargaining bore its own expenses.

You have Congress using a term of art "official time" that had a particular meaning under the federal labor relations statute and no indication in the legislative history that Congress intended to change that meaning.

Finally you have no evidence in the statute that Congress intended to authorize the FLRA to go further, to go beyond what Congress itself had decided that it would provide.

You have no evidence that Congress intended the Authority to be in the business of shifting expenses from the unions to the federal agencies.

Unless there are further questions at this time, I will reserve the remainder of my time.

Chief Justice Warren E. Burger: Very well.

Ms. Peters.

ORAL ARGUMENT OF RUTH E. PETERS, ESQ., ON BEHALF OF THE RESPONDENT

Ms Ruth E. Peters: Mr. Chief Justice, and may it please the Court:

At issue here today in the first Federal Labor Relations Authority case to be heard by this Court is the Authority's determination that a federal employee union representative who is granted official time to participate in collective bargaining negotiations is entitled to receive a per diem allowance and travel expenses from the employer agency for travel in connection with the negotiations.

Now as the Ninth Circuit recognized in this case the Authority's determination is correct essentially for these reasons: first, because the Authority correctly discerned the congressional objectives underlying the federal sector labor statute and adopted an interpretation of the official time provision that comports with and furthers those objectives; and second, because employee representatives who are on official time for negotiations are engaged in official business within the meaning of the Travel Expense Act and are accordingly entitled to the payment of travel expenses.

Now I intend to discuss both of those points, and in the process I also hope to discuss the ways in which the nature and scope and purpose of collective bargaining under the federal sector statute differs from bargaining under the old executive order program or in the private sector under the National Labor Relations Act because ultimately the test of the appropriateness of the Authority's determination is not whether it would have been appropriate under the old executive orders or in the private sector, but rather--

Unidentified Justice: Is it your view that Congress just absentmindedly overlooked this problem?

Ms Ruth E. Peters: --I do not think Congress overlooked it.

It did not address it directly, but it did choose a certain term "official time" from which I think it is reasonable to say that certain consequences flow.

Unidentified Justice: Do you agree that it shows that Congress had the general subject matter in mind?

Ms Ruth E. Peters: It had in mind what status it wanted these people to be on while they were bargaining, negotiating and--

Unidentified Justice: Would that not reasonably suggest all the other problems that were related to it?

Ms Ruth E. Peters: --I think that Congress could have seen that it chose the phrase NTEU, in this regard that it is significant that Congress chose this term because it does equate with duty time or work time and is different from nonduty time or leave or administrative leave or excused absence.

We are not the only ones to see this distinction.

Even the Petitioner, I think, at footnote five of its reply brief sees a difference between official time on the one hand and leave time on the other.

The executive orders distinguished between official time and nonduty time.

Executive Order 10988, for example, said that employer-employee meetings should be conducted on official time wherever possible but that the employer could require that negotiations be conducted on nonduty time.

Furthermore, as we noted--

Unidentified Justice: Do you agree with the proposition that before you can hold the United States government responsible of the payment of money it has to be in clear and unambiguous language?

Ms Ruth E. Peters: --Well, I certainly do not agree with the Petitioner's approach to the authority that they have cited in their brief.

Unidentified Justice: I did not say the Petitioners.

I said me.

Ms Ruth E. Peters: Well, there are a number of statutes that deal with the federal work force that have broad statutory terms such as "official time" or in the Fair Labor Standards Act, for example, "hours of work".

There are a number of remedial and compensatory statutes that have such terms.

If that rule were to be applied really strictly it would just shut off one side of the ability to--

Unidentified Justice: Give me one statute that says official time which includes travel time.

Ms Ruth E. Peters: --I cannot cite you to a statute that says official time--

Unidentified Justice: But do you not need one?

Ms Ruth E. Peters: --No, because I think official time means duty time or duty status and that connotes that it is official business within the meaning of the Travel Expense Act and that the things that you have going when you are on official time, paid time, time for which you are paid by the government--

Unidentified Justice: Would you go so far as to say that if you go to a meeting in Paris you could charge the government with the Concorde rates?

Ms Ruth E. Peters: --Well, that would be a subject I guess for the GSA travel regulations as to what kind of carrier you can take, but that is not really the issue here.

As I was saying, we are not the only ones to see the difference between official time and duty time.

Unidentified Justice: But is your sole reliance not on the language "official time"?

Ms Ruth E. Peters: Our sole reliance on that?

Unidentified Justice: Yes, that should be interpreted to mean official business and hence subject to reimbursement for travel expenses.

Ms Ruth E. Peters: Well, our reliance is on that and our reliance is on the congressional objectives and purposes where they found collective bargaining to be in the public interest.

Unidentified Justice: I know, but if they had not... Suppose they had decided not to subsidize collective bargaining at all.

Ms Ruth E. Peters: Right.

Unidentified Justice: You would not then be here making a claim would you?

Ms Ruth E. Peters: That is right.

Unidentified Justice: Except for the official time and the payment of wages while you are bargaining you would not be here.

Ms Ruth E. Peters: That is right.

Unidentified Justice: So is there any historical support in the executive orders or practice in the government for suggesting that official time includes travel?

Ms Ruth E. Peters: Well, the Assistant Secretary of Labor Management Relations Regulations under the executive order provided that witnesses at hearings be granted official time, and they also got travel expenses.

He precluded the payment of overtime for them.

Also as I remember--

Unidentified Justice: But that is a far cry from saying... Witnesses is one thing, but representing an organization as its bargaining representative is another.

Is that all you have got for the past practice?

Ms Ruth E. Peters: --Well, we have that and then, of course, under Executive Order 10988 did provide that meetings and consultations could be conducted on official time and the Comptroller General first said that they could not get travel expenses either but then he modified that in keeping with the Civil Service Commission guidelines so that it would seem that in some circumstances--

Unidentified Justice: How did he modify it?

Ms Ruth E. Peters: --Pardon?

Unidentified Justice: How did he modify it?

Ms Ruth E. Peters: He modified it by saying that travel expenses could be paid pursuant to the Civil Service Commission guidelines which those guidelines for the most part did not allow the payment of travel expenses for negotiations.

But then negotiations under that executive order... The use of official time was not encouraged for negotiations under that executive order, but one could assume that for the activities for which official time could be used or was encouraged under the executive order assumably travel expenses could be paid.

Unidentified Justice: Do you know of any instances in the past where travel expenses have actually been paid for the time spent negotiating or to go and come from negotiating sessions?

Ms Ruth E. Peters: You mean before the Act?

I do not have anything that I can cite to, but as I recall... Well, I do not have anything I can cite to on that.

Unidentified Justice: Is there any practice since?

Ms Ruth E. Peters: In the payment... Well, people are sort of waiting to see what this Court does on it before--

Unidentified Justice: Has anybody actually paid the expenses up to date?

Ms Ruth E. Peters: --Not that I know of, no, but that is because the matter has been in litigation I believe.

I would note that other attributes of employment do attach to time spent in negotiations, example, we noted in our brief that the Office of Personnel Management in the Federal Personnel Manual letter characterized official time spent on representational functions as hours of work.

Now that characterization on the part of OPM has an operative significance beyond that FPM letter because the same phrase appears in its regulations applying the Fair Labor Standards Act to federal employees, and there OPM provides in 5CFR551.424B that official time is hours of work for FSLA purposes.

On the other hand, it says that such things leave and holidays and excused absences which it call paid periods of nonwork in 5CFR551.401 is not hours of work for FSLA purposes.

So that is one attribute of employment that attaches to someone on official time.

Then as we have also noted--

Unidentified Justice: Who promulgated those regulation Ms. Peters?

Ms Ruth E. Peters: --That was OPM.

That was OPM which administers the Fair Labor Standards Act as it applies to federal employees.

As we have also noted--

Unidentified Justice: What is the relationship between the FLRA and OPM?

Ms Ruth E. Peters: --They are separate agencies with separate areas of responsibility.

As we also noted an employee who would be injured traveling to or from negotiations would be considered to be injured in the course of duty for Federal Employee Compensation Act purposes, and it also--

Unidentified Justice: If you analogize that to state workmen's compensation laws, certainly state workmen's compensation laws have been extended to situations where they will find something arose out of and in the course of employment that it is inconceivable the employee would have been paid for if he had been demanding pay.

Ms Ruth E. Peters: --That may be, but my point is that there are a number of attributes of employment that attach to someone who is in the federal sector on official time for--

Unidentified Justice: I am suggesting your last example proves very little.

Ms Ruth E. Peters: --I think that perhaps more instructive than the various factors that support our view that it is official business, that time spent negotiating is official business is the fact that Petitioner really has not provided any reason why negotiations should not be considered official business.

Petitioner suggested a test which says that official business... that an activity is not official business unless it is conducted under the direction of a supervisor or that the quality of the employee's performance can be appraised.

However, the Petitioner has cited no support in statute or regulation or case authority for that test.

In fact, the authority cited at pages 42 and 43 of our brief which indicates that the official business designation is given to activities that are not directly mission related contradicts that contention.

That authority applies, for example, to employees who attend administrative employment-related hearings about, for example, their own suspensions or their own performance appraisal appeal, and it shows that it covers things such as going to meetings and conferences and seminars and that sort of thing which may or may not be directly mission-related.

Petitioner also points to the language of Section 7131(a) which specifies that an employee who is on official time will be on official time for the time that the employee otherwise would be in duty status.

The Petitioner suggests that Congress intended by this language either to say that they were not really on duty time or that because they would generally travel and take meals while they are not on duty time that Congress meant by this language to preclude travel expenses.

But suffice it to say that very similar language appeared in the Assistant Secretary of Labor's regulations under the executive order and there travel expenses and per diem were paid, but overtime was excluded.

The language also appears in OPM's FLSA regulations regarding official time where it appears to be viewed merely as the restriction on the amount of unscheduled overtime that can be counted as hours of work.

So I think the most reasonable view of that language is that it is a restriction on the payment of overtime and premium paid to employees who are involved in negotiations and not on the payment of travel expenses.

Petitioner has also suggested here today and in the reply brief that "official time" is a term of art simply used in labor relations programs and that it does not operate to signify entitlement to travel and per diem.

Well, the term "official time" was used in the executive orders, and it is used in the federal sector statute, but it has no more artful use than to signify that certain activities are to be conducted on duty time, paid time rather than on nonduty time.

This usage supports rather than defeats the notion that the employee who is engaged in activities that are conducted on official time is engaged in official business.

So as far as our position that this is official business, that negotiations is official business I would point then to the way Congress characterized the time spent in the activity and the great importance that it attached to the activity, that is, that it is something that is in the public interest.

The nature of the activity, that is, that it is employment related.

It certainly seems to me that something that is federal employment related could fall within the sphere of official business and in fact as I indicated people who attend administrative hearings about their own grievances or suspensions or performance appraisal appeals are considered to be on official business and entitled to travel expenses.

So I think all those factors point to the conclusion that these employees are on official business.

Now I would like to address the deference point because when the Authority based on the goals and objectives of its statute also determined that employees are engaged in official business within the meaning of the Travel Expense Act the courts that ruled adversely on this issue and the Petitioner take the position that for that reason the Authority is owed less than usual deference because it refers to another statute.

Now first of all as both Judges Haney and Oakes pointed out in their dissents in the Eighth and Second Circuits this position of the Petitioner and the other courts is in error because first of all the very core of the Authority's analysis here is of the interpretation of the terms of its own statute, but in any event the notion that the Authority is necessarily owed less deference in cases such as this where in order to resolve completely an issue under its own statute it has to look outside in an ancillary fashion at another statute--

Unidentified Justice: What you are saying is that they are construing the authority of another agency, the authority conferred by Congress on a different agency.

Ms Ruth E. Peters: --Well, first I would note that GSA which has authority under the Travel Expense Act in its regulations has essentially said that individual agencies can authorize travel and thus determine whether it is official business or not except as otherwise provided by law.

I would think it would be fair to take from that that when an agency is affected by someone else's enabling statute such as the FLRA statute that it is up to the FLRA to determine what is official business within the meaning of that enabling statute.

Unidentified Justice: But the underlying proposition is that it is the business of the agency.

The central business of the agency is what is covered by the GSA provision.

Ms Ruth E. Peters: Yes.

Unidentified Justice: In other words, if a judge is assigned from one district to another he is authorized to have his expenses paid and his per diem, but there he is engaged or she is engaged in the business of that agency and not some other agency.

Ms Ruth E. Peters: Yes.

But an individual federal agency besides having its own enabling statute is covered by a number of statutes and regulations dealing, well, such as in this case with federal personnel matters, and travel could be connected with those statutes as well.

It would seem reasonable that the person responsible or the agency responsible for those statutes would determine whether something is official business within the terms of that statute.

As I was saying this notion that the Authority is necessarily owed less deference in a situation such as this where it finds it necessary to look outside to another statute has troubling implications not only for this case but also for the Authority's ability in the future to function in the way that Congress intended.

The Authority has a unique enabling statute and in some instances there is an express direction that they may have to look outside the statute in order to resolve completely an issue arising under the statute.

For example, in Section 7117 under which the Authority makes determinations of negotiability it must determine according to Congress whether a union bargaining proposal is not inconsistent with any federal law or any government-wide rule or regulation.

Now the Congress did not set out a separate standard of review for negotiability determinations, however.

The standard of review for those final orders is the same as for other final orders of the authority.

That is, it will not be set aside unless it is arbitrary and capricious.

I think that it is just a matter of common sense that even where Congress has not made it express that an agency such as the FLRA that administers a federal sector collective bargaining program will from time to time have to resolve issues that in an ancillary fashion implicate federal personnel laws or regulations or other laws or regulations affecting the federal work force or work place and this case is an example--

Unidentified Justice: Ms. Peters, can I ask a question at this point?

Ms Ruth E. Peters: --Sure.

Unidentified Justice: It goes to the standard of the review problem and the method of review.

Ms Ruth E. Peters: Sure.

Unidentified Justice: Supposing the issue arose such as Justice Marshall asked you about that whether the employee was entitled to take first class because there was not tourist available or something that went to the amount of the travel expense reimbursement and there was a refusal to pay the requested amount, could the employee under your view of the statutory scheme cite that as an unfair labor practice and ask that it be decided by your Authority?

Ms Ruth E. Peters: They might try to take it up through the unfair labor practice route.

If they were under a collective bargaining agreement could also I would imagine be the topic for a negotiated grievance procedure, but that does not necessarily mean even if they ask that the Authority review it that a complaint would issue or that if a complaint did issue--

Unidentified Justice: This is the route they took in this case.

Ms Ruth E. Peters: --Pardon?

Unidentified Justice: This is the route they took in this case.

This arised out of an unfair labor practice proceeding.

Ms Ruth E. Peters: Yes.

Unidentified Justice: As I understand you you say the standard of review is arbitrary and capricious for that reason, and I was giving you a hypothetical with the issue just a little different.

They are coming up in exactly the same way.

Would you say there the standard of review would also be arbitrary and capricious?

Ms Ruth E. Peters: If it came up in an unfair labor practice proceeding, yes.

Unidentified Justice: The question of whether they could have ridden first class instead of tourist?

Ms Ruth E. Peters: Well, if he raised that as an unfair labor practice matter, but what I am saying is that you might try to bring it up that way but it would not necessarily be a violation of the Act and the general counsel would not necessarily issue a complaint.

Unidentified Justice: No, but if your Authority thought that the Comptroller General's people were being much too strict I would suppose under your view you would have the right to say yes that is an unfair labor practice if we are not getting the right amount of money.

Ms Ruth E. Peters: The Authority would be bound by the GSA's federal travel regulations which it recently recognized in a negotiability determination are a government-wide regulation and that an issue cannot be... For example, a union bargaining proposal cannot be inconsistent with the federal travel regulations, and I believe that there--

Unidentified Justice: Well, what if we had here... I know we do not, but what if we had here a regulation by the Comptroller General labeled travel regulation and it said just what the Solicitor General is saying here that union negotiating sessions do not support a travel expense claim?

Ms Ruth E. Peters: --Well, one point in that regard is that GSA has never before or since the Authority's determination said anything like that nor has Congress.

It has been silent in the nearly four years since the Authority has made this determination even though it has used the official time language--

Unidentified Justice: But the case would be different if they had such a regulation.

Is that what you are suggesting?

Ms Ruth E. Peters: --If they had such a regulation?

Unidentified Justice: Yes.

Ms Ruth E. Peters: That said that--

Unidentified Justice: If we knew that the Comptroller General in some written formal document had adopted the position of the Solicitor General in this case, would it be a different law suit?

Ms Ruth E. Peters: --If he issued a decision or if the GSA instead of having the regulation saying that an agency may determine whether it is authorized travel or not, yes, it would be a different case and the Authority would have to look at those regulations.

But that is not the case here.

Traditionally the Comptroller General has given leeway ever since the Civil Service Commission days to the labor relations body to determine the travel expenses and official time question.

At this point the Comptroller General has noticed that even as to his official time rulings under the executive orders that because of the nature of Section 7131 which is very specific and departs from the executive orders he considers his decisions under the executive orders on that issue to be superseded to the extent that they are inconsistent with the new law.

Unidentified Justice: Ms. Peters, this is irrelevant, but I am curious.

Does the record indicate how much as a practical matter we are talking about in dollars?

Ms Ruth E. Peters: Overall or--

Unidentified Justice: In this issue.

Ms Ruth E. Peters: --In this particular case or government-wide?

Unidentified Justice: In this issue generally.

Ms Ruth E. Peters: In this issue generally.

No.

Petitioner I believe cited a speech by an OPM official suggesting $2 million, a figure something like that, but I do not think that there is any really documentable--

Unidentified Justice: No hard evidence.

Ms Ruth E. Peters: --Hard evidence on that point.

Unidentified Justice: We have a lot of speeches cited to us.

Ms Ruth E. Peters: Pardon?

Unidentified Justice: We have a lot of speeches cited to us.

Ms Ruth E. Peters: I see.

But on the area of cost, I would point out that any discussion of the cost of the Authority's determination must necessarily take into account the benefits that Congress viewed as being derived from collective bargaining such as increased productivity or more efficient government which would in some sense cut down on the overall cost of government one would think.

Unidentified Justice: Have you got any commentators in this case?

[Laughter]

Ms Ruth E. Peters: I have not a single commentator to cite, student or nonstudent.

I would note that the statute by its own terms and also the Authority decisions set limits on the entitlement to official time and thus accordingly to the entitlement to travel and per diem.

Section 7131 expressly limits the number of employee representatives who are entitled to official time to the number of management representatives, and that is a number, of course, that is within the control of the agency.

The statute also limits official time entitlement to federal employees so that any union staff members who are involved in the negotiations will not receive either official time or travel expenses.

The statute prohibits the use of official time for internal union matters so that it is only the activities which Congress perceives as being in the public interest for which official time can be used.

The Authority has placed limits on the entitlement to official time.

It has ruled that an employee negotiator in order to receive official time must be a member of the bargaining unit involved in the negotiations and not another bargaining unit.

Unidentified Justice: If I could follow Justice Blackmun's question one step further, if we agree with you is there any way we can prevent all of the meeting being held in Hawaii, Nevada, Puerto Rico, et cetra?

Ms Ruth E. Peters: Well, that is generally one of the ground rules that has to be established by the parties.

I would imagine that the management representatives unless they want to go to Hawaii will make some efforts to keep the meeting from being held there.

Unidentified Justice: They will deduct theirs from the income tax.

It will not hurt them.

[Laughter]

Ms Ruth E. Peters: Not if it is official business I do not think, but in any event that is a matter for parties to determine and in fact given the number of nation-wide bargaining units that is one additional factor in support of the Authority's determination because it facilitates the parties coming to agreement on where to hold the meetings so that if all the management representatives are already centrally located in Washington, D.C., for example, they can bring the union representatives in there and there will not be any cost of travel for the management representatives at all.

I would address one final point and that is the third ground upon which the Authority relied in defining which the Ninth Circuit relied in finding that the Authority's determination was correct and that is that the Authority's reading of the official time provision of Section 7131A which entitled negotiators to payment of travel expenses and per diem is consistent with the Authority's reading of Section 7131C which enables the Authority to determine that an employer agency will grant official time and in the Authority's view travel expenses and per diem to employee participants in Authority proceedings.

Now the--

Unidentified Justice: Have you said as much as you are going to say, Ms. Peters, about why this is justifiably different than private collective bargaining?

Ms Ruth E. Peters: --It is different from private collective bargaining first of all because in the private sector there is no statutory official time requirement and secondly because both the parties to private bargaining are private parties there is not even a question of equalizing public funding support.

Unidentified Justice: But you can look at that two different ways I think.

You can look at the public sector bargaining as the government, the employer representing the public but the employees are representing an adverse faction just as they would represent an adverse faction in private sector bargaining.

The fact that all are government employees in a technical sense I do not think really makes it irrefutable, the other position.

Ms Ruth E. Peters: Well, I think there are differences in the nature and scope and structure of private sector bargaining as compared to federal sector bargaining which means that it may well not be an appropriate determination in the private sector but it is supportable here.

The scope of bargaining in the private sector is very broad entailing a large number of economic items for one thing, and in the structure emphasis is upon private ordering with the parties largely left free to muster up whatever economic forces they can to bring to bear on the issues.

For that nature the nature of collective bargaining in the private sector is often referred to as economic warfare with each side having an arsenal of economic weapons such as strike or lock out to enforce their views in bargaining issues.

Now in the federal sector that is much different.

The scope is narrow with no bargaining over items such as wages or pensions or a host of other items that would be bargainable.

In the structure--

Unidentified Justice: Why does narrow versus broad bargaining suggest that your conclusion rather than the opposite one should be reached?

Ms Ruth E. Peters: --Because it dictates that there is a different nature of bargaining.

While certainly the bargaining that occurs in the federal sector is an arms length transaction with independent views being expressed by both sides of the table, it cannot be characterized as economic warfare because there are no economic weapons.

We are not concerned about an economic balance, and there are no legal economic weapons such as strike or lock out.

Unidentified Justice: That shows why it may be different but why does it show that it is more likely that the official time should be construed to include what you contend it is here as opposed to the private sector?

Ms Ruth E. Peters: Because it is a question here.

Entitlement to official time turns upon what in the private sector would turn upon perhaps a company rule governing travel expenses.

Here it turns upon a federal statute which says if something is official business that it is official time.

Unidentified Justice: Yes, but you concede then I take it the private sector bargaining unless they cover it in the collective bargaining contract the union representative would not be paid.

Here your group of federal employees could bargain for this payment could it not?

Ms Ruth E. Peters: Well, that is not entirely clear to me.

If this Court were to hold that this were not official business and the Authority is bound in a negotiability situation if there were a union bargaining proposal that travel expenses be paid but this Court has found that collective bargaining negotiation time is not official business it may well be.

It certainly is arguable that that proposal would be inconsistent with the federal law or government regulation so that it could not be--

Unidentified Justice: The wage payment or the payment for the official time does not necessarily have to be official business does it?

Ms Ruth E. Peters: --The wage payment?

The wage payment... Well, the Congress did express, though, that they were to be on paid time just as management was on paid time.

Unidentified Justice: Whether it is official business or not?

Ms Ruth E. Peters: Well, management is an official business so if they are on paid time the same as management--

Unidentified Justice: No, but the employees.

Ms Ruth E. Peters: --Pardon?

Unidentified Justice: How about the employee?

Ms Ruth E. Peters: Well, in our view the employee is on official business.

Chief Justice Warren E. Burger: Thank you.

Do you have anything further?

ORAL ARGUMENT OF CAROLYN CORWIN, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Ms Carolyn Corwin: Mr. Chief Justice, just a few points.

We are not in any way suggesting that the FLRA should never look outside its own statute, and I do not want to leave the Court with that impression.

I think that the core of the analysis of the FLRA does encompass a reference to a statute outside of its own jurisdiction, and we suggest that that may diminish the deference that is due and we also suggest that the Authority is inconsistent with the general approach of the General Services Administration in this area in which the agency is in the best position to determine its own mission and to determine whether travel corresponds to that mission.

To the extent that Ms. Peters suggested that the term VII, I just wanted to indicate that it does not.

I may have misunderstood what she said, but the term "official business" shows up in the General Services Administration statute.

It does not show up in the federal labor relations statute.

I would also like to address the point that was raised about payment for witnesses at hearings and some of the regulations of the Assistant Secretary of Labor.

There is considerable authority in a lot of areas for payment in relation to attendance at official hearings.

The Comptroller General has approved that sort of payment not only in the labor relations area but in broader areas of personnel management.

That is not what we are talking about here.

We are talking about collective bargaining negotiations where you do not have any sort of history of this sort of payment being approved.

In fact you have articulated understandings that travel expenses were not included within the concept of official time.

There was also reference to Office of Personnel Management regulations referring to hours of work.

I think if you look at those regulations that term is not any sort of substantive judgment about what an employee is doing during representation or collective bargaining.

That is basically an accounting or reporting term.

You put your hours into hours of work and you determine whether the minimum wage has been paid or overtime is required.

I do not think it has any bearing on the issue before the Court here.

Unidentified Justice: Ms. Corwin, can I ask one other question?

Ms Carolyn Corwin: Yes, indeed.

Unidentified Justice: In a way this law suit is kind of a strange case because it is a fight within the family.

They are different government agencies disagreeing with one another.

As I understand your opponent she seems to say if the Comptroller General had ruled unequivocally on this issue that may well change the result.

I wonder why it had to reach us and it could not have been resolved at some sort of a level like that.

Ms Carolyn Corwin: Well, unfortunately the situation and I will try to clarify that is that the Comptroller General has been asked for his views under this statute.

By the time the question was raised as I understand it the matter was already before the Authority and in the courts, and the Comptroller General has adopted regulations that say when that is the case unless both parties to the dispute ask the Comptroller General he will not issue an opinion and therefore the--

Unidentified Justice: His time is less valuable than ours I guess.

[Laughter]

Ms Carolyn Corwin: --Unfortunately I think by the time somebody thought of that alternative things were already in the Courts of Appeals.

Unidentified Justice: But the other agencies are not bound by the Comptroller General.

They are bound by the rulings of this Court.

Is that not the difference?

Ms Carolyn Corwin: That is, of course, a matter that is of great interest to the agencies, but I--

Unidentified Justice: It certainly does not bind the individual employee.

Ms Carolyn Corwin: --Well, generally there is a considerable amount of deference given to the Comptroller General's views, and I would like to clarify the executive order situation in which the Comptroller General rules that in the case in which an agency concluded that it was in the best interests of the government that there could be authorization of travel expenses.

Now this was by no means a blanket authorization.

The principle here articulated by the Comptroller General was that if the agency concludes that it is for the interest of the government, more convenient, will save money overall that the agency in a particular fact situation could conclude that it was appropriate to pay the expenses but not in the sort of broad situation you have here not generally for collective bargaining purposes.

I think one ought to assume that Congress was aware of this Comptroller General interpretation and that it did adopt this sense in the same sense that it used the term "official time".

Finally, I think the proposition that collective bargaining is in the public interest is one with which we have no difficulty.

This was a proposition that was essentially included in the executive order program in some different words.

It was articulated by Congress in the 1978 Act, and I think it is a foundation of the federal labor management relations program, but that general proposition is not enough to get us to the conclusion that Congress somehow intended to shift the expenses in this case from the unions where they had always been to the federal agencies.

The general proposition is simply not translated into an entitlement to federal reimbursement of the expenses here.

Thank you.

Chief Justice Warren E. Burger: Thank you, counsel.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.