Department of Treasury, Internal Revenue Service v. Federal Labor Relations Authority/Dissent Stevens

Justice STEVENS, dissenting.

If OMB Circular A-76 (rev., Aug. 4, 1983) is not an "applicable law" within the meaning of 5 U.S.C. § 7106(a)(2), the plain language of that section requires an outright reversal of the Court of Appeals' decision. I have previously endorsed the view that the Circular is not an applicable law, and I still think that conclusion is correct. EEOC v. FLRA, 476 U.S. 19, 27, 106 S.Ct. 1678, 1683, 90 L.Ed.2d 19 (1986) (dissenting opinion); see also U.S. Dept. of Health and Human Services v. FLRA, Labor Relations Authority, 844 F.2d 1087 (CA4 1988) (en banc). But even if the Circular were an "applicable law," it would then certainly also be "a Government-wide rule or regulation" within the meaning of § 7117(a)(1). Under the plain language of that section, the duty to bargain does not extend to matters which are the subject of such a regulation. By seeking to bargain about enforcement of the Circular, the Union seeks to bargain about matters subject to the Circular. Cf. 844 F.2d, at 1099. I am therefore persuaded that whether or not one interprets Circular A-76 as an applicable law, either § 7106(a)(2) or § 7117(a)(1) requires reversal. To the extent that the Court instead leaves the issue open on remand, I respectfully dissent.

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