The Florida National Guard and the United States Department of Defense1 petition for review of an order of the Federal Labor Relations Authority (FLRA) directing the Guard to pay the travel and per diem expenses incurred by union representatives while negotiating on behalf of the union. Although this is the first time we have been presented with such a challenge, three other circuit courts have addressed this precise issue.2 The Eighth and Second Circuits denied enforcement of the FLRA order. United States Department of Agriculture v. Federal Labor Relations Authority, 691 F.2d 1242 (8th Cir.), petition for cert. filed, 51 U.S.L.W. 3484 (U.S. Dec. 13, 1982) (No. 82-979); Division of Military and Naval Affairs v. Federal Labor Relations Authority, 683 F.2d 45 (2d Cir.), petition for cert. filed, 51 U.S.L.W. 3485 (U.S. Dec. 16, 1982) (No. 82-1021). The Ninth Circuit upheld the Authority. Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority, 672 F.2d 732 (9th Cir.), cert. granted, --- U.S. ----, 103 S. Ct. 784, 74 L.Ed.2d --- (1983). Because we conclude that the FLRA incorrectly interpreted the statutes and legislative history pertinent to this issue, we align ourselves with the Eighth and Second Circuits and deny enforcement of the Authority's order.Factual Background

The facts in this case were stipulated by the parties. Therefore, we only summarize them here.

The Florida National Guard and the National Association of Government Employees were parties to a collective bargaining agreement that expired in January 1978. While negotiating a new agreement, the parties continued to operate under the terms of the expired contract. A bargaining impasse arose, and the parties referred the dispute to the Federal Services Impasse Panel for resolution. An intervening tentative agreement was rejected by the union membership. The Impasse Panel then directed that a fact-finding hearing be conducted in St. Augustine, Florida.

Ronald Meier, a technician3 in the Florida National Guard and then president of the union local, attended the two days of hearings in his capacity as a negotiator for the union local. Meier was granted official time for the hours he spent at the hearing that corresponded with his duty hours, but was granted neither official time for his travel time from his duty station in Jacksonville to the hearing in St. Augustine nor travel and per diem expenses.

The union filed an unfair labor practice charge, and in March 1981, the Federal Labor Relations Authority ruled that under 5 U.S.C. Sec. 7131(a)4 Meier was entitled to official time to cover his travel to and from the impasse hearings. The Authority, relying on an Interpretation and Guidance, 2 F.L.R.A. 264 (1979), also determined that the Guard was responsible for Meier's travel and per diem expenses. The Guard does not challenge the determination that Meier was entitled to official time for the time spent travelling. It does, however, contest the conclusion that the Guard must pay his travel and per diem expenses. Because the FLRA's order is premised upon the 1979 Interpretation and Guidance, we focus upon the Interpretation itself. See Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority, 672 F.2d 732, 735 (9th Cir.), cert. granted, --- U.S. ----, 103 S. Ct. 784, 74 L.Ed.2d --- (1983).

Judicial review of FLRA decisions "shall be on the record in accordance with section 706 [of Title V]." 5 U.S.C. Sec. 7123(c). 5 U.S.C. Sec. 706(2)(A) provides that an agency's action should be set aside only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." For two reasons, however, this standard does not apply with its normal force to the instant case.

Section 7134 of Title 5 of the United States Code5 grants the FLRA the authority to promulgate rules and regulations. The Interpretation and Guidance, however, was not promulgated pursuant to that authority. Rather, it was issued pursuant to 5 U.S.C. Sec. 7105(a)(1),6 which requires the Authority to take the lead in establishing guidelines and policies in the area of federal labor relations.

As an interpretative rule, therefore, [the Interpretation and Guidance] may be accorded less weight than rules issued pursuant to the delegated rulemaking authority of Congress. See General Electric Co. v. Gilbert, 429 U.S. 125, 141, 97 S. Ct. 401, 410, 50 L. Ed. 2d 343 (1976). The Supreme Court has stated that although interpretative rules reflect an agency's special expertise and are thus entitled to deference, their weight on judicial review will also depend on the thoroughness evident in their consideration, the validity of the reasoning, and their consistency with earlier and later pronouncements. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 164, 89 L. Ed. 124 (1944).

Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority, 672 F.2d 732, 735 (9th Cir.), cert. granted, --- U.S. ----, 103 S. Ct. 784, 74 L.Ed.2d --- (1983).

Additionally, because the FLRA's Interpretation and Guidance is premised, at least in part, upon the Authority's reading of the term "official business" in 5 U.S.C. Sec. 5702(a),7 a section not part of the FLRA's enabling statute, but instead part of a subchapter administered by the General Services Administration, a lesser degree of deference is warranted. "No great deference is due an agency interpretation of another agency's statute." Division of Military and Naval Affairs v. Federal Labor Relations Authority, 683 F.2d 45, 48 (2d Cir.) (citing New Jersey Air National Guard v. Federal Labor Relations Authority, 677 F.2d 276, 281 n. 6 (3d Cir.1982)), petition for cert. filed, 51 U.S.L.W. 3485 (U.S. Dec. 16, 1982) (No. 82-1021). See also United States Department of Agriculture v. Federal Labor Relations Authority, 691 F.2d 1242, 1246-47 (8th Cir.), petition for cert. filed, 51 U.S.L.W. 3484 (U.S. Dec. 13, 1982) (No. 82-979). Thus, although we do not deem it proper to accord the FLRA's interpretation of the law no weight at all, neither will we blindly accept its rationale. We consider it proper to accord the Interpretation and Guidance that amount of deference and respect that its internal logic and thoroughness warrant.8Analysis

In its Interpretation and Guidance, the FLRA concedes that neither the statute nor the legislative history of Title VII of the Civil Service Reform Act of 1978, known commonly as the Federal Labor-Management Relations Act, expressly discusses the payment of travel and per diem expenses for union negotiators. To reach its conclusion that such expenses are congressionally mandated, the FLRA looks to its own enabling statute and to 5 U.S.C. Sec. 5702(a), a statute administered by the General Services Administration.

The Authority's first premise is that an employee negotiating on behalf of the union membership is entitled to "official time" under 5 U.S.C. Sec. 7131(a). Neither we nor the petitioners dispute that. Next, the FLRA cites 5 U.S.C. Sec. 5702(a) for the truism that travel and per diem expenses are authorized when an employee "is engaged on official business for the Government." The great leap of faith occurs in moving to the conclusion that "an employee, while negotiating a collective bargaining agreement as a union representative and while on paid time entitled to his or her usual compensation and not in a leave status, is clearly engaged on 'official business for the Government.' " 2 F.L.R.A. at 269 (1979).

The FLRA's attempt at bridging the gap between the congressional decision that "official time" should be accorded and the conclusion that union negotiators are performing the Government's official business and therefore are entitled to travel and per diem expenses is predicated on Congress' statement of intent in adopting the Federal Labor-Management Relations Act:

(a) The Congress finds that--

(1) experience in both private and public employment indicates that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them--

(A) safeguards the public interest,

(B) contributes to the effective conduct of public business, and

(C) facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment; and

(2) the public interest demands the highest standards of employee performance and the continued development and implementation of modern and progressive work practices to facilitate and improve employee performance and the efficient accomplishment of the operations of the Government.

Therefore, labor organizations and collective bargaining in the civil service are in the public interest.

(b) It is the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.

5 U.S.C. Sec. 7101. Because Congress found that collective bargaining "contributes to the effective conduct of public business," the FLRA reasons, Congress must mean that such bargaining constitutes "official business" within the definition of 5 U.S.C. Sec. 5702(a).9 Like the Eighth and Second Circuits, we cannot agree with this interpretation. See United States Department of Agriculture v. Federal Labor Relations Authority, 691 F.2d 1242 (8th Cir.), petition for cert. filed, 51 U.S.L.W. 3484 (U.S. Dec. 13, 1982) (No. 82-979); Division of Military and Naval Affairs v. Federal Labor Relations Authority, 683 F.2d 45 (2d Cir.), petition for cert. filed, 51 U.S.L.W. 3485 (U.S. Dec. 16, 1982) (No. 82-1021).10

The Authority's reliance on a general declaration of policy by Congress is "too thin a reed" to support the conclusion that collective bargaining on "official time" is also "official business." Division of Military and Naval Affairs, 683 F.2d at 48.

[T]he FLRA's Interpretation assumes that Congress authorized additional expenditures to cover travel expenses and per diem without making even an oblique reference to that effect. Because we are unwilling to impose additional financial liability on the Government without an affirmative directive from Congress, we prefer the interpretation that does not make the Government liable for these expenses.

United States Department of Agriculture, 691 F.2d at 1247 (citing Brookfield Construction Co. v. United States, 661 F.2d 159, 163-64 (Ct.Cl.1981)).

Congress' declaration that the statutory protection of collective bargaining is in the public interest does not imply an intent to underwrite the process entirely. Neither does its expressed intent to more nearly equalize the status of the parties in bargaining evidence a mandate to the Government to assume the full financial burden.

When Congress enacted Title VII of the Civil Service Reform Act of 1978, it rejected the Senate version of the official time provision that would have incorporated the existing limitation on official time under Executive Order No. 11,491, as amended. Under the Order, the parties were allowed to authorize up to forty hours or up to one-half the time spent in negotiations during regular duty hours. It was clear under the Order that agencies were not authorized to pay the travel and per diem expenses for employees serving as union negotiators.

The FLRA argues that the expansion of "official time" in the Act as well as the endorsement of collective bargaining evidences the congressional intent to authorize the payment of travel and per diem expenses. We do not agree. Congress is deemed to know the executive and judicial gloss given to certain language and thus adopts the existing interpretation unless it affirmatively acts to change the meaning. Lorillard v. Pons, 434 U.S. 575, 580-581, 96 S. Ct. 866, 870, 55 L. Ed. 2d 40, 46 (1978); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S. Ct. 2362, 2370 n. 8, 45 L. Ed. 2d 280, 294 n. 8 (1975). Congressional silence in the Act indicates acceptance of the prior practice.

It was not inconsistent for Congress to expand the availability of official time while disallowing the payment of travel and per diem expenses. Union dues are collected for such expenses. If the entire financial burden of the negotiating process were shouldered by the Government, inequality--not equality--of bargaining status would result.11 In sum, we are not persuaded that Congress, without the briefest of references to the matter, intended the Government to assume this potentially enormous financial liability. Therefore, we grant the petition of review and DENY ENFORCEMENT.