BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, PETITIONER V. FEDERAL LABOR RELATIONS AUTHORITY and NATIONAL TREASURY EMPLOYEES UNION No. 82-799 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the Bureau of Alcohol, Tobacco and Firearms, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutes involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-11a) is reported at 672 F.2d 732. The ruling of the Federal Labor Relations Authority (App. D, infra, 15a-34a) is reported at F.L.R.A. No. 40. JURISDICTION The judgment of the court of appeals was entered on March 22, 1982 (App. B, infra, 12a-13a), and a timely petition for rehearing was denied on July 13, 1982 (App. C, infra, 14a). On October 1, 1982, Justice Rehnquist extended the time in which to file a petition for certiorari to and including November 10, 1982. The jurisdiction of this court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 5 U.S.C. (Supp. V) 7131 provides: (a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes. (b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status. (c) Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status. (d) Except as provided in the preceding subsections of this section -- (1) any employee representing an exclusive representative, or (2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest. 5 U.S.C. (Supp. V) 5702(a) provides: Under regulations prescribed under section 5707 of this title, an employee while traveling on official business away from his designated post of duty, or in the case of an individual described under section 5703 of this title, his home or regular place of business, is entitled to (1) a per diem allowance for travel inside the continental United States at a rate not to exceed $50, and (2) a per diem allowance for travel outside the continental United States, that may not exceed the rate established by the President, or his designee, for each locality where travel is to be performed. For travel consuming less than a full day, such rate may be allocated proportionately. 4 U.S.C. 5707(a) provides: The Administrator of General Services shall prescribe regulations necessary for the administration of this subchapter, except that the Director of the Administrative Office of the United States Courts shall prescribe such regulations with respect to official travel by employees of the judicial branch of the Government. QUESTIONS PRESENTED Whether Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. (Supp. V) 7131(a), requires that a federal agency pay a per diem allowance and travel expenses to employee union representatives engaged in collective bargaining with the agency. STATEMENT 1. In October 1978 Congress enacted the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 ("the Act"). Title VII of the Act (5 U.S.C. (Supp. V) 7101 et seq.) governs labor-management relations, including collective bargaining, for nearly all federal agencies. /1/ Title VII replaced the federal labor relations program created in 1962 by Executive Order No. 10988, 27 Fed. Reg. 551. /2/ The Act establishes the Federal Labor Relations Authority ("FLRA" or "Authority") as a three-member independent body within the Executive Branch with responsibility for supervising the federal collective bargaining process under Title VII. /3/ FLRA activities include adjudication of negotiability disputes, unfair labor practice complaints, bargaining unit issues, and arbitration exceptions, conduct of elections, and rulemaking. See 5 U.S.C. (Supp. V) 7105(a)(2)(A)-(I). The FLRA has the authority to issue orders against unfair labor practices (5 U.S.C. (Supp. V) 7118) and to seek enforcement of those orders in appropriate United States courts of appeals. 5 U.S.C. (Supp. V) 7123(b). Persons, including federal agencies, who are aggrieved by any final FLRA order may seek judicial review in the courts of appeals. 5 U.S.C. (Supp. V) 7123(a). 2. In November 1978 petitioner, the Bureau of Alcohol, Tobacco and Firearms of the Department of the Treasury, notified the National Treasury Employees Union ("the Union") that is intended to move its Lodi, California, office to Sacramento, and to establish a reduced duty post at a new location in Lodi (App. A, infra, 2a). The Union, which represented some of the Bureau's employees affected by the relocation, informed the Bureau that it wished to negotiate concerning the move and its impact on employees in the bargaining unit (App. D, infra. 22a). The Union designated as its bargaining agent for these negotiations Donald Pruett, a Bureau employee who lived in Madera, California, and was stationed in Fresno (App. A, infra, 2a). Pruett notified the Bureau that he wished to inspect the new Bureau facilities (Keehan deposition of March 7, 1980, at 11). /4/ Bureau officials agreed to meet at the proposed Sacramento office and to examine the facilities there and in Lodi (App. A, infra, 2a). On the morning of February 23, 1979, several Bureau officials met Pruett in Sacramento and toured the offices. They inspected the physical facilities and the location of the desks, as well as the availability of restrooms, a cafeteria, and parking (Tr. 28-29, 54-56). Pruett "wandered around" by himself for a time, examining the building and offices (id. at 28-29). The parties then drove to Lodi and, after lunch, toured the new reduced office site, examining the proposed arrangement of desks, parking, and access to restaurants (id. at 57-66). Pruett and the Bureau officials then went to the existing Lodi office where they discussed the impact of the planned move (App. A, infra, 2a). Pruett pronounced the new facilities acceptable, except for parking availability in Sacramento (App. D, infra, 24a-25a). The parties discussed assignment of employees to the two new offices and the possibility of excusing employee tardiness for the first week in Sacramento (id. at 25a). On the day of negotiations Pruett left his home in Madera around 6:15 a.m. and returned at approximately 5:45 p.m., traveling a total of some 300 miles in his own car (ibid.; Tr. 36, 37). Pruett sought to have the February 23 session classified as a quarterly meeting for which "official time" was authorized in the collective bargaining agreement between the Union and the Bureau (App. A, infra, 3a). A grant of "official time" allowed employee union representatives to be paid as if they were at work, without being charged for annual leave. The Bureau refused Pruett's request on the ground that the agreement did not authorize official time for mid-term negotiations, as opposed to the quarterly meetings (ibid.; App. D, infra 23a). /5/ The Bureau informed Pruett that he could take either annual leave or leave without pay for the day he had been away from his post (App. A, infra, 3a). 3. In June 1979, several months after the Bureau's decision not to authorize official time for Pruett, the Union filed an unfair labor practice charge with the FLRA. The Authority's General Counsel issued a complaint charging that Pruett was entitled to official time for his day of touring and negotiating under 5 U.S.C. (Supp. V) 7131(a), which governs authorization of official time for employee union representatives engaged in negotiation of a collective bargaining agreement (App. D, infra, 27a). In the course of a hearing before an Administrative Law Judge, the complaint was amended to add a claim that, in addition to paying his salary, the Bureau should have paid Pruett's travel expenses and a per diem allowance (App. A, infra, 3a). In December 1979, shortly before the General Counsel filed this complaint against the Bureau, the FLRA had issued an Interpretation and Guidance concerning official time and travel expenses and per diem (2) F.L.R.A. No. 31; App. E, infra, 35a-47a). /6/ In its Interpretation, the Authority first concluded that under Section 7131(a) federal agencies must grant official time to employee union representatives for all types of collective bargaining, including mid-term negotiations (App. E, infra, 37a-41a). The Authority then found that, although Section 7131(a) nowhere mentions travel expenses or per diem allowances, that section nonetheless requires federal agencies to pay such costs for all employee union representatives for whom official time is granted for collective bargaining activities (App. E, infra, 41a-45a). Following the hearing, the Administrative Law Judge found that negotiations had indeed taken place between Pruett and Bureau officials on February 23, 1979 (App. D, infra, 30a-31a). The ALJ stated that he considered himself constrained to follow the Authority's recent Interpretation and Guidance (id. at 28a-29a). He accordingly recommended that the Bureau be ordered to grant Pruett official time for the day of negotiations and to pay his travel costs and per diem and that it be required to post a notice stating that the Bureau would do the same for employee union representatives in future negotiations (id. at 32a-33a). The Bureau timely filed exceptions to the ALJ's decision with the Authority. In September 1980 the Authority affirmed and adopted the decision of the ALJ and ordered the recommended relief (id. at 15a-19a). The Bureau then sought review in the court of appeals pursuant to 5 U.S.C. (Supp. V) 7123(a), and the Union intervened as a party in that appeal. 4. On appeal, the Bureau raised two issues: (1) whether Section 7131(a) requires agencies to grant official time to employee union representatives for mid-term negotiations; and (2) assuming that official time is required, whether Section 7131(a) also requires payment of travel expenses and per diem of employee union representatives. The court of appeals enforced the Authority's order on both issues (App. A, infra, 1a-11a). The court first held that it must give deference to the Authority's Interpretation and Guidance if it was reasoned and supportable (App. A, infra, 4a-5a). The court concluded that the Authority's decision regarding official time for mid-term bargaining was reasonable, citing the language of the statute and its history (id. at 5a-9a). /7/ The court gave relatively little attention to the issue of travel costs and per diem. It recognized, as did the Authority, that neither the statute nor its history refers to such payments (id. at 9a). The court reviewed the three reasons offered by the Authority in its Interpretation and Guidance as support for the view that the statute nonetheless requires payment of travel expenses and per diem /8/ and concluded that the Authority's interpretation appeared reasonable (id. at 9a-10a). REASONS FOR GRANTING THE PETITION This case presents an important and recurring question concerning administration of the federal labor relations program established under Title VII of the Civil Service Reform Act of 1978. The court of appeals' decision enforces an FLRA order requiring a federal agency to pay travel expenses and a per diem allowance to an employee union representative engaged in collective bargaining with that agency. This holding imposes on federal taxpayers, rather than union members, a significant monetary liability representing the ordinary and necessary expenses of operating a union, without the slightest indication in the statute or its history that Congress intended to create such liability. This result is incorrect and is in direct conflict with decisions of two other circuits. Review by this Court is plainly warranted. 1. The decision of the court of appeals conflicts with recent decisions of the Second and Eighth Circuits. See Division of Military & Naval Affairs v. FLRA, 683 F.2d 45 (1982), rehearing denied (2d Cir. Sept. 17, 1982); Department of Agriculture v. FLRA, No. 81-1948 (Aug. 9, 1982), rehearing denied (8th Cir. Sept. 14, 1982). /9/ The Second and Eighth Circuits concluded that Title VII does not require a federal agency to pay the travel expenses and per diem allowances of employee union representatives engaged in collective bargaining with the agency. Both courts expressly noted and rejected the contrary conclusion of the Ninth Circuit in this case. See Division of Military & Naval Affairs v. FLRA, supra, 683 F.2d at 47 n.3; Department of Agriculture v. FLRA, supra, slip op. 16 n.19. This conflict in the circuits creates severe practical problems for federal agencies, because it results in different rules governing employees within the same agency or even the same bargaining unit, depending upon the location of their duty stations. Pursuant to the decision below, Bureau employees serving as bargaining agents in Sacramento will receive travel payments and per diem allowances; under the decisions of the Second and Eighth Circuits, on the other hand, Bureau employees in New York or St. Louis will not receive such payments. This disparate treatment will be most noticeable during national negotiations. For example, if Bureau employees travel from Sacramento and New York to Washington, D.C. to attend the same nationwide bargaining session, the agency must determine which employee negotiators (if any) must receive travel expenses. A similar problem will arise if an employee stationed in a circuit with one rule travels to a bargaining session in a circuit with a different rule. This lack of uniformity creates substantial uncertainty about what rule applies in a particular case and places federal agencies in the awkward posture of affording different treatment to similarly situated employees. It may also result in artificial decisions about where negotiations will be held and which representatives will be chosen to attend. The FLRA policy upheld by the court of appeals will spawn other adverse consequences. It will create unnecessary friction between unions and agencies by obliging agencies to monitor the travel of employee union representatives to ensure that such travel is reasonable. /10/ Monitoring is likely to result in dissension if the agency concludes that union travel expenses are unreasonable. /11/ Moreover, as agencies are increasingly subjected to budgetary constraints, they may be forced to choose between cutting travel expenses (including union travel) and reducing other agency activities, creating the potential for claims of discrimination against union activity. The FLRA policy also seems likely to lead to inefficiencies in the collective bargaining process. The Authority's decision forces an agency to bear virtually the entire expense of collective bargaining: the agency must pay the salaries of both its own negotiators and those of the employee union representatives, as well as the travel expenses and per diem allowances of both groups. This places considerable pressure on the agency to compromise, while concurrently removing pressure from the union to do so. Thus, federal agencies will be at a distinct disadvantage if they are faced with protracted negotiations. Unlike the situation in the private sector, in which each party bears the cost incurred by its own representatives (see page 15, infra), the parties here will occupy unequal positions, thus undermining effective collective bargaining. This result seems clearly inconsistent with the congressional mandate that the statute should be interpreted "in a manner consistent with the requirement of an effective and efficient Government." 5 U.S.C. (Supp. V) 7101(b). Finally, the FLRA policy will prove costly to federal taxpayers. The Office of Personnel Management has estimated that application of the FLRA Interpretation would cost 15 agencies over $2 million per year. See Gov't Empl. Rel. Rep. (BNA) No. 852, at 11 (Mar. 10, 1980). /12/ 2. These consequences need not be suffered, because the decision of the court of appeals is incorrect. a. The FLRA acknowledged in its Interpretation and Guidance that Title VII does not mention payments for travel expenses and per diem of employee union representatives (App. E, infra, 42a). Section 7131(a), on which the Authority relied, refers only to authorization of official time for employee union representatives during the period they would otherwise be in a duty status. /13/ Neither that section nor any other section of Title VII refers to payment of travel expenses or per diem. In addition, there is no discussion of travel expenses or per diem in the legislative history of the Act. It is quite unlikely that Congress would have imposed a significant monetary obligation on the government by requiring that federal agencies pay travel expenses and per diem of employee union representatives without expressly referring to such a requirement. Under the executive order program that had previously governed federal labor relations, the established administrative practice was for each party to bear the expenses of its own representatives (App. E, infra, 42a n.6). In fact, payment by federal agencies of the expenses of employee union representatives engaged in collective bargaining appears to have been prohibited in most instances. See 46 Comp. Gen. 21 (1966). Congress must be presumed to have been aware of this practice (Lorillard v. Pons, 434 U.S. 575, 581 (1978)), but gave no indication that it intended to change it. The failure affirmatively to alter the settled administrative practice suggests that Congress intended to codify it. See Haig v. Agee, 453 U.S. 280, 300 (1981); Lorillard v. Pons, supra, 434 U.S. at 580; Shapiro v. United States, 335 U.S. 1, 16 (1948). Moreover, payment by the employer of union travel expenses and per diem is not the norm in the private sector. The National Labor Relations Board has compelled employers to pay union travel expenses and per diem only as an extraordinary remedy for an employer's failure to bargain in good faith. See Division of Military & Naval Affairs v. FLRA, supra, 683 F.2d at 48. In view of the previous administrative practice in the federal sector and the prevailing patterns in the private sector, it is reasonable to expect that Congress would have affirmatively expressed any intent to impose a new and different rule. See Weinberger v. Rossi, No. 80-1924 (Mar. 31, 1982), slip op. 8; NLRB v. Bell Aerospace Co., 416 U.S. 267, 278-279, 285 n.13 (1974). As the FLRA has acknowledged, there is no such expression here. If anything, the language and history of the statute argue against the FLRA interpretation. Section 7131(a) refers to official time for employees in terms of the period they "otherwise would be in a duty status." But per diem allowances are primarily for costs generally incurred outside duty hours -- breakfast, dinner, and overnight lodging. Travel expenses also are frequently incurred outside duty hours. The reference to duty status thus suggests that Congress did not intend to use Section 7131(a) as a vehicle for imposing liability on the government for travel expenses and per diem of employee union representatives. In addition, when Congress enacted Title VII it expressly changed the treatment of official time. Previously, Section 20 of Executive Order No. 11491, 34 Fed. Reg. 17614 (1969), had permitted parties to agree on grants of official time to employee union negotiators, up to a total of 40 hours or one-half of the bargaining time during regular working hours. In contrast, Section 7131(a) now mandates unlimited official time for negotiations during the time an employee otherwise would be in a duty status. This specific change from the executive order program was discussed by Congress during consideration of Title VII. /14/ The treatment of official time stands in sharp contrast to the absence of any mention of an intent to alter the established practice under which agencies were not required to pay union travel expenses or per diem. The inappropriateness of implying any intent to change the treatment of travel expenses and per diem is confirmed by the statement of Representative Udall, the primary sponsor of Title VII, during the debate on the legislation: "What we really do is to codify the 1962 action of President Kennedy in setting up a basic framework of collective bargaining for Federal employees. * * * The Federal employee unions do not get much out of this amendment process that is not already in the Executive order." 124 Cong. Rec. 29182 (1978). b. Given the lack of any evidence that Congress intended to create agency liability for travel expenses and per diem of employee union representatives, the court of appeals' ruling is plainly contrary to the rule of statutory construction applied by this Court in United States v. Zazove, 334 U.S. 602 (1948). In Zazove the Court refused to adopt a statutory interpretation that would have increased the government's monetary liability without a clear showing that Congress so intended (id. at 616-617). The Court noted that "Congress nowhere specified that the United States would bear the huge cost of the enhanced liability" caused by the interpretation urged by the respondent in that case. "(A)nd that striking omission is persuasive, in the absence of cogent considerations to the contrary, that no generosity of this magnitude was contemplated" (ibid.; footnote omitted). Accord, Pine Hill Coal Co. v. United States, 259 U.S. 191, 196 (1922). Indeed, the court of appeals' ruling is contrary to the more general principle that waivers of sovereign immunity must be strictly construed. See United States v. Kubrick, 444 U.S. 111, 117-118 (1979); United States v. Sherwood, 312 U.S. 584, 590 (1941). A waiver of sovereign immunity may not be implied, but must be unequivocally expressed. See, e.g., United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. Testan, 424 U.S. 392, 399 (1976). This principle is fully applicable to the case of monetary claims by federal employees against a federal agency. See United States v. Testan, supra (employee claims for back pay). Because payments for travel expenses and per diem are nowhere mentioned in Title VII or its legislative history, there is no unequivocally expressed waiver of sovereign immunity that would permit a court to enforce an order requiring such payments. /15/ c. Although the language and history of Title VII and principles of statutory construction indicate that the FLRA Interpretation and Guidance is incorrect, the court of appeals concluded that it should defer to that Interpretation and that the Interpretation was reasoned and supportable. The court's conclusion is erroneous for several reasons. First, the court's deference was inappropriate in this case. The Interpretation and Guidance is an interpretive rule and thus is entitled to less weight than a rule issued pursuant to the FLRA's rulemaking authority (App. A, infra, 4a). Moreover, as this Court noted in NLRB v. Brown, 380 U.S. 278, 291-292 (1965), quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 318 (1965), "'the deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.'" Whether to require federal agencies to pay out substantial sums of money to fund federal employee union travel and per diem is plainly a "major policy decision() properly made by Congress," and the court therefore should have examined critically the FLRA's reasoning. In addition, and perhaps most important, the FLRA's Interpretation was based in large part on its construction of the term "official business," as used in 5 U.S.C. (& Supp. V) 5702, a statute that is administered not by the Authority but by the General Services Administration. See 5 U.S.C. 5707(a). No deference is due an agency's interpretation of a statute it does not administer. See, e.g., Department of Agriculture v. FLRA, supra, slip op. 9-10; New Jersey Air National Guard v. FLRA, 677 F.2d 276, 281-282 n.6 (3d Cir.), cert. denied, No. 82-224 (Nov. 8, 1982); Whaley v. Schweiker, 663 F.2d 871, 873 (9th Cir. 1981); March v. United States, 506 F.2d 1306, 1316 (D.C. Cir. 1974). Second, the reasoning offered by the FLRA in support of its Interpretation does not withstand scrutiny. The court of appeals found it significant that the Authority had read Sections 7131(c) and 7131(a) consistently (App. A, infra, 9a). Section 7131(c) permits the Authority to require official time for employees participating in FLRA proceedings on behalf of their unions. Like Section 7131(a), Section 7131(c) nowhere mentions travel expenses or per diem. No court has yet determined whether the Authority's reading of the latter section is proper. Thus, it is as unsupported as the Authority's view of Section 7131(a); the fact that the Authority has interpreted the two provisions consistently does not make either interpretation correct. The court of appeals also accepted the Authority's assertion that, because Congress declared collective bargaining in the federal sector to be in the public interest (see 5 U.S.C. (Supp. V) 7101(a)), employees representing their unions in negotiations must be conducting "official business," and thus are entitled to receive travel expenses and per diem under 5 U.S.C. (& Supp. V) 5702 (App. A, infra, 10a). But nothing in 5 U.S.C. (& Supp. V) 5702 itself or in regulations issued by the Administrator of General Services indicates that collective bargaining comes within the term "official business." /16/ That term normally refers to work done on behalf of an agency, pursuant to a directive from the agency. Unlike an agency representative, however, a union bargaining agent is not acting on behalf of the agency; instead, his goal is to gain benefits for the members of the bargaining unit (which includes himself) and for the union. This Court observed last Term that opposing parties in collective bargaining do not pursue the same goal: "The entire process of collective bargaining is structured and regulated on the assumption that '(t)he parties * * * still proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest.'" General Building Contractors Association, Inc. v. Pennsylvania, No. 81-280 (June 29, 1982), slip op. 18, quoting NLRB v. Insurance Agents, 361 U.S. 477, 488 (1960). /17/ Finally, the court below accepted the Authority's explanation that federal agencies should pay union travel expenses and per diem because Congress intended to equalize the positions of unions and agencies (App. A, infra, 10a). The Authority's sole support for this conclusion was a statement by Representative Clay (App. E, infra, 43a-44a), which concerned grants of official time for union bargaining agents and did not mention travel costs or per diem (124 Cong. Rec. 29188 (1978)). Thus, it does not support the broad conclusion reached by the Authority. /18/ In any event, assuming Congress intended to create greater equality between the positions of unions and agencies, there is no indication that it meant for the Authority to go beyond the steps Congress itself mandated to achieve that objective. /19/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General J. PAUL McGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General CAROLYN F. CORWIN Assistant to the Solicitor General WILLIAM KANTER DOUGLAS LETTER Attorneys NOVEMBER 1982 /1/ Certain federal employees, including members of the uniformed services and the Foreign Service, and certain agencies, including the General Accounting Office, Federal Bureau of Investigation, Central Intelligence Agency, and National Security Agency, are excluded from the coverage of Title VII. See 5 U.S.C. (Supp. V) 7103(a)(2) and (3). United States Postal Service employees also are excluded from Title VII coverage, since labor relations matters involving those employees are within the jurisdiction of the National Labor Relations Board. See 39 U.S.C. 1209. Title VII protects the right of federal employees "to form, join, or assist any labor organization, or to refrain from any such activity" (5 U.S.C. (Supp. V) 7102), and it establishes a duty to bargain collectively in good faith. See 5 U.S.C. (Supp. V) 7116(a)(5) and (b)(5). The statute also outlines the matters subject to the bargaining obligation. See 5 U.S.C. (Supp. V) 7103(12), (14) and 7117. Certain management rights are excluded from the scope of bargaining. 5 U.S.C. (Supp. V) 7106. However, an agency must negotiate with a recognized union over procedures the agency will follow in exercising its reserved management rights, 5 U.S.C. (Supp. V) 7106(b)(2). The provisions of Title VII are to be read "in a manner consistent with the requirement of an effective and efficient Government." 5 U.S.C. (Supp. V) 7101(b). /2/ The executive order program was revised and continued by Executive Order No. 11491, 34 Fed. Reg. 17605 (1969), as amended by Executive Orders Nos. 11616, 11636, and 11838, 36 Fed. Reg. 17319, 24901 (1971) and 40 Fed. Reg. 5743 (1975). /3/ The FLRA replaced the Federal Labor Relations Council, which had similar responsibilities under the executive order program. /4/ The deposition of Mardell Keehan, a Bureau personnel specialist, is part of the record in this case (Tr. 8-11, 68-69). "Tr." refers to the transcript of the February 27, 1980, hearing before the FLRA Administrative Law Judge. /5/ The agreement also made no reference to payment of a per diem allowance or travel expenses of employee union representatives engaged in collective bargaining (C.A. App. 136). /6/ Although the Authority provided a notice and comment period, the Interpretation apparently was issued not under the Authority's statutory power to promulgate regulations (5 U.S.C. (Supp. V) 7134), but rather under 5 U.S.C. (Supp. V) 7105(a)(1), which requires the Authority to provide leadership in establishing policies and guidance relating to federal labor-management relations (App. A, infra, 4a). /7/ This aspect of the court's decision is not challenged in our petition. /8/ The court summarized (App. A, infra, 9a-10a) the three reasons set out in the Authority's Interpretation and Guidance. The Authority had cited the fact that the language of Section 7131(a) is similar to that of 5 U.S.C. (Supp. V) 7131(c), which the Authority previously had interpreted as requiring payment of union travel expenses and per diem. (Like Section 7131(a), Section 7131(c), which governs availability of official time for participation in proceedings before the Authority, does not mention travel expenses or per diem.) In addition, the Authority had concluded that employee union negotiators who were on official time while they were engaged in collective bargaining must be considered to be conducting "official business," so that they would be entitled to travel expenses and per diem under a separate statute, 5 U.S.C. (& Supp. V) 5702. Finally, the Authority had stated that payment of travel expenses and per diem would be consistent with a congressional intent to equalize the positions of management and labor. /9/ We have supplied copies of the Eighth Circuit's slip opinion to the Clerk of the Court and to counsel for respondents. Other cases involved challenges by federal agencies to FLRA orders requiring the payment of travel expenses and per diem allowances are pending in the Eleventh and District of Columbia Circuits. See, e.g., Florida National Guard v. FLRA, No. 81-5466 (11th Cir. argued Sept. 1, 1982); Bureau of the Mint and United States Customs Service v. FLRA, Nos. 82-1194, 82-1195 (D.C. Cir.). Given the wide geographical dispersion of federal offices, this issue could arise in every circuit. The Act provides for judicial review of FLRA orders "in the United States courts of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia." 5 U.S.C. (Supp. V) 7123(a). The term "person" includes a federal agency. 5 U.S.C. (Supp. V) 7103(a)(1). /10/ An agency may be required to monitor its employees' travel expenses in connection with investigations of such expenses by the Administrator of General Services. See 5 U.S.C. 5707(b). /11/ Indeed, an instance of such a problem already has surfaced before the FLRA. See Department of the Air Force, Air Force Logistics Command, Wright-Patterson & AFGE, Council 214, 10 F.L.R.A. No. 53 (Sept. 30, 1982). In that case a union filed an unfair labor practice charge with the Authority after the agency refused to pay travel expenses and per diem allowances for certain employee union negotiators who were to be brought from a distant location. The union had refused to explain why employee representatives stationed at the bargaining site could not be used for the negotiations, and as a result the agency was unable to certify that the travel demanded by the union was essential, as required by departmental travel regulations. The Authority found that the agency had committed an unfair labor practice. /12/ Several months prior to the filing of this petition, the Office of Personnel Management surveyed selected government agencies and determined that travel expenses and per diem of employee union representatives of those agencies had totaled several million dollars over a 12-month period. /13/ Section 7131(a) reads: Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes. /14/ See,e.g., 124 Cong. Rec. 29188 (1978). /15/ We do not argue that the Authority may not order appropriate monetary relief once it has properly found an unfair labor practice. See 5 U.S.C. (Supp. V) 5596(b). However, there must first be an unfair labor practice to be remedied. The Authority may not, as it has done here, identify an unfair labor practice by stretching the statute to find an implied intent to pay. /16/ Under 5 U.S.C. 5707(a), the Administrator of General Services is authorized to make rules for the administration of 5 U.S.C. (& Supp. V) 5702. The Administrator has concluded that each individual agency should make its own determination of when its employees are engaged in "official business." FLRA's interpretation purporting to override the determinations of individual agencies in the area of collective bargaining thus is inconsistent with the Administrator's decision concerning how the statute should be administered. /17/ The Comptroller General has recognized the difference between federal employee union representatives who are on official time during negotiations and agency personnel who are on official business. In an opinion addressing the earlier executive order program, which permitted official time for bargaining on a limited basis, the Comptroller General stated that even though union/agency negotiations "may contribute to the effective conduct of public business," union representatives should not be considered as conducting the official business of the United States. 44 Comp. Gen. 617, 618 (1965). He concluded: "On the contrary it would seem that such negotiations by employee representatives are primarily in the interest of the employee organization" (ibid.). /18/ Moreover, even the treatment of official time adopted by Congress refutes the Authority's view. Rather than requiring precisely equal treatment, Section 7131(a) specifically limits official time for employee union representatives to periods when the employees would otherwise be in a duty status; no such limit is imposed with respect to agency representatives. /19/ The FLRA actually spoke in terms of equalizing the situation of union and management negotiators, noting that the latter are uniformly paid travel expenses and per diem when they are engaged in collective bargaining (App. E, infra, 43a-44a). However, employee union representatives are not necessarily in a different position, given the fact that unions have financial resources that can be used for payment of such expenses. See 5 U.S.C. (Supp. V) 7115. The question is whether Congress intended that the federal government, rather than the unions themselves, should reimburse the expenses of employee union representatives engaged in collective bargaining on behalf of the unions. Appendix Omitted