Fort Stewart Schools v. Federal Labor Relations Authority/Concurrence Marshall

by Thurgood Marshall

Justice MARSHALL, concurring.

I write separately to emphasize that management's prerogative to "determine . . . the . . . budget . . . of the agency," 5 U.S.C. § 7106(a)(1), is reasonably, and perhaps necessarily, subject to a narrower reading than the one adopted by the Federal Labor Relations Authority. The Authority presently interprets that prerogative as exempting from the duty to bargain proposals that either (1) require the inclusion of a particular program or operation in the agency's budget or prescribe the amount to be allocated to them in the budget, or (2) result in significant and unavoidable increases in costs not offset by compensating benefits. American Federation of Govt. Employees, AFL-CIO (AFGE), 2 F.L.R.A. 604, 608 (1980), enf'd on other grounds sub nom. Department of Defense v. FLRA, 212 U.S.App.D.C. 256, 659 F.2d 1140 (1981). Section 7106(a)(1) is more naturally read, however, as withdrawing from mandatory bargaining only those proposals addressed to the budget per se, not those that would result in significantly increased expenditures by the agency.

As the Authority stated in formulating its test, " 'budget' means a statement of the financial position of a body for a definite period of time based on detailed estimates of planned or expected expenditures during the period and proposals for financing them." AFGE, supra, at 608 (citing Webster's Third New International Dictionary (1966)). To "determine the budget," then, means to calculate in advance the funds available to the agency and the allocation of those funds among the agency's programs and operations. See AFGE, supra, at 608. The language of the statute thus exempts from the duty to bargain only those proposals that would involve the union in the budget process itself. This interpretation also accords more closely with Congress' intent that the management prerogatives in § 7106 be construed narrowly. See, e.g., 124 Cong.Rec. 29183 (1978) (statement by Rep. Udall, author of the language in § 7106) (§ 7106 is "to be treated narrowly as an exception to the general obligation to bargain over conditions of employment"); id., at 29187 (statement of Rep. Clay) ("[I]t is essential that only those proposals that directly and integrally go to the specified management rights be barred from the negotiations"); H.R.Rep. No. 95-1403, p. 44 (1978) ("The committee intends that section 7106 . . . be read to favor collective bargaining whenever there is doubt as to the negotiability of a subject or a proposal").

The first part of the Authority's test accords with the plain meaning of the budget provision. The second part, however, is at best a stretch of the statutory language. Proposals that impose "significant" and "unavoidable" costs on the agency do not interfere with the agency's prerogative to determine which programs and operations to include in its budget and how to allocate funds among them. Such proposals may of course affect budgetary decisions, but to remove them from bargaining would eliminate bargaining over many important matters altogether, without any indication that Congress intended to do so.

The Union's proposals in this case would clearly not fall within the agency's budget prerogative because they do not require union involvement in the budget process. Because the Union's proposals are negotiable even under the agency's "significant cost" test, we need not decide whether that test is inconsistent with the statute. The Court's opinion, however, does not foreclose a future challenge to that test.

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