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AMERICAN FEDERATION OFGOVERNMENT EMPLOYEES, AFL-CIO(AFGE), Council 147,Petitioner,No. 98-70912SOCIAL SECURITY ADMINISTRATION,FLRA No.Respondent-Intervenor,54-FLRA-45v.OPINIONFEDERAL LABOR RELATIONSAUTHORITY,Respondent.

On Petition for Review of a Decision of theFederal Labor Relations AuthorityArgued and SubmittedDecember 8, 1999--San Francisco, CaliforniaFiled March 3, 2000Before: Charles Wiggins, Diarmuid F. O'Scannlain, andMichael Daly Hawkins, Circuit Judges.Opinion by Judge Hawkins

_____________________________COUNSEL Kevin M. Grile (argued), American Federation of Govern-ment Employees, AFL-CIO, Chicago, Illinois, for the peti-tioner.David M. Smith (argued) and Ann M. Boehm, Federal LaborRelations Authority, Washington, D.C., for the respondent.Alfred R. Mollin (argued), United States Department of Jus-tice, Washington, D.C., for the intervenor.

_____________________________OPINION HAWKINS, Circuit Judge:We must decide whether a district office of the SocialSecurity Administration (the "Agency") committed an unfairlabor practice when it refused to bargain over staffing levelspursuant to section 7106(b)(1) of the Federal Service Labor-Management Relations Statute (the "Statute"). Although sec-tion 7106(b)(1) only provides for bargaining "at the electionof the agency," the American Federation of GovernmentEmployees, AFL-CIO, Council 147 (the "Union") contendsthat the President made this election for the Agency throughExecutive Order 12871, which directs all agencies to bargainover section 7106(b)(1) topics. After the Federal Labor Rela-tions Authority ("FLRA") rejected this argument, the Unionpetitioned this court for review. We now affirm the FLRA'sdecision and deny the petition for review.Facts and Procedural BackgroundThe Union is the designated labor representative forAgency employees in the San Francisco region, includingemployees working in the Santa Rosa district office. In Octo-ber 1994, Union member Steve Matich, a claims representa-tive, asked to move from one unit to another within thedistrict office. Matich apparently expected that, if moved, hewould trade places with a claims representative in the otherunit. However, when the Agency's district manager toldUnion officials she was considering the transfer, she statedthat Matich's transfer, if granted, would not be accompaniedby any other moves.Because the Union was concerned that a unilateral transferwould unbalance workloads in the two units, it requested thatno changes be made until the Union and Agency "have bar-gained to agreement." In making this request, the Union citedsection 7106(b)(1) of the Statute, which provides for bargain-ing "at the election of the agency, on the numbers, types, andgrades of employees or positions assigned to any organiza-tional subdivision, work project, or tour of duty, or on thetechnology, methods, and means of performing work. " 5U.S.C. S 7106(b)(1). Although section 7106(b)(1) does notgive unions a right to bargain unless an agency elects to, theUnion maintained that the President had made this election onbehalf of the Agency through Executive Order 12871 (the"Order").The President issued the Order on October 1, 1993. Its pur-pose, as stated in the opening paragraph, is to involve"Federal Government employees and their unionrepresentatives" in "achieving the National PerformanceReview's Government reform objectives." 58 Fed. Reg.52201, 52201 (1993). Among the provisions of the Order issection 2(d), which falls under a heading titled"Implementation of Labor-Management PartnershipsThroughout the Executive Branch." Section 2(d) states that"[t]he head of each agency subject to the provisions of Chap-ter 71 of title 5, United States Code shall . . . . negotiate overthe subjects set forth in 5 U.S.C. S 7106(b)(1), and instructsubordinate officials to do the same." Id.  at 52202-03.Section 3 of the Order is titled "No Administrative or Judi-cial Review." It provides as follows:       This order is intended only to improve the internal       management of the executive branch and is not       intended to, and does not, create any right to admin-       istrative or judicial review, or any other right, sub-       stantive or procedural, enforceable by a party against       the United States, its agencies or instrumentalities,       its officers or employees, or any other person.Id. at 52203.After receiving the Union's request to bargain, the Agencymoved Matich to another unit without replacing him. TheAgency informed Union officials that it would negotiate overthe implementation and impact of the transfer, as required by5 U.S.C. SS 7016(b)(2) and 7106(b)(3),1 but would not bar-gain over staffing levels. The Union then filed an unfair laborpractice charge pursuant to 5 U.S.C. SS 7116(a)(1) and7116(a)(5),2 alleging that the Agency committed an unfairlabor practice by unilaterally changing staffing levels withoutgiving the Union an opportunity to bargain. Both the ALJ andthe FLRA rejected this argument, finding that no unfair laborpractice had occurred because the Order did not constitute anelection for purposes of section 7106(b).3 Standard of ReviewWe give deference to an agency's interpretation of statutesand executive orders it is charged with administering. SeeNLRB v. Kolkka, 170 F.3d 937, 939 (9th Cir. 1999) (statute);Kester v. Campbell, 652 F.2d 13, 15 (9th Cir. 1981) (execu-tive order); University of S. Cal. v. Cost of Living Council,472 F.2d 1065, 1068 (9th Cir. 1972) (executive order). Whenan agency interprets a statute outside its administration, how-ever, we review that interpretation de novo.4 See J.L. v. SocialSec. Admin., 971 F.2d 260, 268 (9th Cir. 1992) (no deferenceto SSA construction of Rehabilitation Act); see also FLRA v.U.S. Dep't of Treasury, Fin. Mgmt. Serv., 884 F.2d 1446,1451 (D.C. Cir. 1989) (no deference to FLRA's interpretationof Privacy Act).In this case, the FLRA interpreted an executive order deal-ing with labor-management partnerships in the federal gov-ernment. Although the Order relates to matters under theFLRA's responsibility, the FLRA was not charged withadministering the Order such that its interpretation is entitledto deference. Therefore, we review the FLRA's interpretationof the Order de novo.AnalysisWe start with the language of the Order. Section 2(d) ofExecutive Order 12871 states that "[t]he head of each agencysubject to the provisions of Chapter 71 of title 5, United StatesCode shall . . . . negotiate over the subjects set forth in 5U.S.C. S 7106(b)(1), and instruct subordinate officials to dothe same." 58 Fed. Reg. at 52202-03. There is no questionthat the Agency is subject to the provisions of Chapter 71 oftitle 5, which prescribes the rights and obligations of federalemployees. There is also no question that the Order is manda-tory and that agencies failing to obey the Order are answer-able to the President.[1] We cannot conclude, however, that the language of theOrder constitutes an election to bargain. As the D.C. Circuitrecently pointed out in a related case, the Order does not statethat the President has elected to negotiate with labor unions.See National Ass'n of Gov't Employees, Inc., v. FLRA , 179F.3d 946, 950 (D.C. Cir. 1999). Instead, it directs the head ofeach agency to negotiate and to instruct subordinates to do thesame. See id. The distinction between the two statements maybe subtle, but as the FLRA noted, "directing another to takean act is not necessarily the same as undertaking the actoneself." United States Dep't of Commerce, Patent andTrademark Office ("Commerce II"), 54 FLRA No. 43, at 19(1998). This distinction is especially important given that thePresident easily could have used the term "election" if that iswhat was intended.5[2] That the President did not intend to make an election ismade clear by section 3 of the Order. Section 3 states that theOrder is "intended only to improve the internal managementof the executive branch and is not intended to, and does not,create any right to administrative or judicial review." It seemshighly unlikely that a President who intended to make alegally enforceable election on behalf of all government agen-cies would at the same time declare that the order does notcreate any judicially or administratively enforceable rights.The Union argues that section 3 does not preclude a findingthat the Order constitutes an election under section7106(b)(1). Although it concedes that section 3's languagewith respect to judicial review prevents a party from enforc-ing the order standing alone, the Union maintains that it doesnot seek to enforce the order itself. Instead, it seeks to enforcesection 7106(b)(1)'s provision for bargaining when an elec-tion is made, and it relies on the Order only to demonstratethat an election has in fact been made.[3] The Union's argument is intriguing, as far as it goes.But even if section 3 does not bar us from giving effect to theOrder through enforcement of section 7106(b)(1), section 3 atleast demonstrates that the Order was not intended to consti-tute an election. Put another way, the Union's theory that itseeks only to enforce section 7106(b)(1) may resolve anyjurisdictional problems created by section 3, but the theorycannot overcome the clear implication of section 3, which isthat the Order was not intended to constitute a legally enforce-able election.[4] The Union also argues that its position is supported bya guidance issued by the Office of Personnel Management("OPM"), which states that "bargaining over the subjects setforth in 5 U.S.C. S 7106(b)(1) is now mandatory, and a failureby agency managers to engage in such bargaining would beinconsistent with the President's directive." Commerce II, 54FLRA No. 43, at 15 (quoting OPM "Guidance for Implement-ing Executive Order 12871"). However, the guidance does notstate that the Order constitutes an election, only that it is man-datory, and there has never been any dispute on that point.The Union argues that the Order could only be mandatory ifit constituted an election because otherwise it would have nomandatory effect; it would only be a suggestion. But the Pres-ident can discipline agency heads who fail to follow theOrder, and in this sense the Order has a mandatory effect.[5] Because the language of the Order is clear and becausethe Union offers no persuasive reason to depart from that lan-guage, we conclude that Executive Order 12871 does not con-stitute an election to bargain. Accordingly, the Agency did notcommit an unfair labor practice, and the Union's petition forreview is denied.PETITION DENIED.

___________________________FOOTNOTES 1 Section 7106(b)(2) provides for bargaining over the "procedures whichmanagement officials of the agency will observe in exercising any author-ity under this section." 5 U.S.C. S 7106(b)(2). Section 7106(b)(3) providesfor bargaining over "appropriate arrangements for employees adverselyaffected by the exercise of any authority under this section by such man-agement officials." 5 U.S.C. S 7106(b)(3). Unlike section 7106(b)(1),these two sections do not give agencies discretion to bargain, but insteadmandate bargaining.2 Section 7116(a)(1) makes it an unfair labor practice "to interfere with,restrain, or coerce any employee in the exercise by the employee of anyright under this chapter." 5 U.S.C. S 7116(a)(1). Section 7116(a)(5) makesit an unfair labor practice "to refuse to consult or negotiate in good faithwith a labor organization as required by this chapter." 5 U.S.C.S 7116(a)5).3 The FLRA decided this interpretative issue in a related case. SeeUnited States Dep't of Commerce, Patent and Trademark Office("Commerce II"), 54 FLRA No. 43 (1998). It then applied the reasoningof that case to the facts of the present case. See Social Security Admin.,Santa Rosa Dist. Office, Santa Rosa, California, 54 FLRA No. 45 (1998).4 We are unaware of any 9th Circuit cases involving an agency's inter-pretation of an executive order it was not charged with administering. Butwhen this court has shown deference to agency interpretations of execu-tive orders, it has expressly noted that the agency was charged withadministering the order. See Kester, 652 F.2d at 15; Cost of LivingCouncil, 472 F.2d at 1068-69. We think it reasonable to conclude, there-fore, that when an agency is not charged with administering an executiveorder, this court reviews the agency's interpretation of that order de novo.5 The Union argues that the FLRA has frequently looked at negotiatedlanguage to determine that an agency has made an election to bargain andhas not required use of the word "elect." To support this argument, itpoints to three cases: National Treasury Employees Union, Chapter 97, 45FLRA 1242, 1250 (1992); National Ass'n of Gov't Employees, Local R4-75 Union, 24 FLRA 56, 62 (1986); Local 1917, American Fed'n of Gov'tEmployees, 13 FLRA 77, 78 (1983). These cases, however, do not standfor the proposition that an executive order or agency statement can consti-tute an election without using the word "elect. " Rather, in each case, theFLRA simply held that when an agency has signed a collective bargainingagreement containing topics covered by section 7106(b)(1) -- such asstaffing levels -- the agency has elected to bargain over those topics;indeed, the agency has already bargained over those topics. In the presentcase, the Agency refused to bargain over section 7106(b)(1) topics, so wecannot point to its agreement on such topics as evidence that it actuallyelected to bargain.