47:1004(96)CA - - HHS, SSA, Baltimore, MD and AFGE, National Council of SSA Field Office Locals, Council 220 - - 1993 FLRAdec CA - - v47 p1004

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[ v47 p1004 ]
47:1004(96)CA
The decision of the Authority follows:


47 FLRA No. 96

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF SOCIAL SECURITY ADMINISTRATION

FIELD OFFICE LOCALS

COUNCIL 220

(Charging Party/Union)

5-CA-00495

_____

DECISION AND ORDER

June 30, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel and the Union. The Respondent filed an opposition to the General Counsel's and Union's exceptions and cross-exceptions to the Judge's decision. The General Counsel filed an opposition to the Respondent's cross-exceptions.

The complaint alleges that the Respondent refused to negotiate with the Union regarding incentive awards for employees in the bargaining unit in violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). The Judge found that the Respondent did not violate the Statute as alleged and recommended that the complaint be dismissed.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

II. Background

The facts, which are set forth more fully in the Judge's decision, are summarized below.

The American Federation of Government Employees (AFGE) is the exclusive representative of a consolidated nationwide bargaining unit of the Respondent's employees. The parties negotiated a master labor agreement (MLA) in 1982, which was superseded by another MLA that became effective on January 25, 1990, by order of the Federal Service Impasses Panel (the Panel).

In a letter to the Respondent's Commissioner dated April 11, 1988, AFGE delegated to its locals the right to initiate mid-term bargaining.(1)

On December 12, 1989, after having unsuccessfully attempted to bargain at the local level, the president of AFGE Local 1346 submitted the following request to negotiate and proposals concerning performance awards to the Respondent's Commissioner:

This constitutes a Union initiated proposal(s) for Mid-term bargaining on remedies for performance awards disputes. The authority for this action is NTEU v. FLRA, 810 F.2d 295. The Union proposal is as follows:

1. The Manager will notify the Union [p]resident immediately in writing when performance award money becomes available.

2. This notification will include total dollar amount designated for performance awards in the office.

3. Twenty percent of the award money shall be set aside for unit employees whose appraisals are subsequently raised later because of grievance or EEO complaint remedies.

Please notify us who your chief negotiator will be.

. . .

P.S. The AFGE General Committee has delegated full [a]uthority to local presidents for this new statutory bargaining.

Judge's decision at 3. With the December 12, 1989, letter, the local president submitted ground rule proposals. In a letter dated January 25, 1990, the Respondent refused to negotiate, contending that it was not appropriate to bargain regarding performance awards during the term of the collective bargaining agreement.

III. Judge's Decision

Before the Judge, the General Counsel argued that the Respondent violated the Statute when it refused to bargain on January 25, 1990, following the local president's request to initiate bargaining over performance award matters. The General Counsel relied on Internal Revenue Service, 29 FLRA 162 (1987) (IRS), in which the Authority held that a union has a statutory right to initiate mid-term bargaining "on negotiable union proposals concerning matters which are not contained in the agreement unless the union has waived its right to bargain about the subject matter involved." Id. at 166. The General Counsel contended that the Respondent violated the Statute because: (1) the local Union submitted a request to negotiate concerning negotiable proposals on matters not contained in the agreement; (2) the Respondent refused to bargain; and (3) AFGE had not waived its right to bargain about performance awards.

The Respondent defended its acknowledged failure to engage in negotiations by claiming that: (1) AFGE had waived its right to initiate bargaining; (2) there was no statutory right to initiate bargaining on matters unrelated to MLA issues when negotiations for a new MLA were ongoing and the parties to the MLA were at impasse before the Panel; and (3) the local president's request was not valid because he did not have the authority to initiate bargaining. In general, the Respondent argued that because the proposals were made during the term of the 1982 MLA, AFGE should have raised those issues at the national level when the parties were negotiating for a new MLA in 1988.

The Respondent also asserted that because no procedures existed in the MLA for union-initiated bargaining, such bargaining could occur only at the level of exclusive recognition unless otherwise mutually agreed to by the parties at the level of exclusive recognition. The Judge summarily rejected this contention, concluding that under IRS an agency has the responsibility to bargain pursuant to union-initiated requests during the term of an agreement. The Judge noted, however, that Department of Health and Human Services, 6 FLRA 202 (1981) (HHS) established that the level of exclusive recognition between the Respondent and AFGE, the exclusive representative of a consolidated unit of the Respondent's employees, is at the national level. The Judge also concluded that in the absence of agreement between the parties, or other appropriate delegation of authority, negotiations are required only at the level of exclusive recognition, citing Department of Defense Dependents Schools and Overseas Education Association, 12 FLRA 52, 53 (1983).

The Judge made the following findings as to the local president's request to bargain: (1) the request was for "[m]id-term bargaining on remedies for performance awards disputes[,]" and therefore, was a mid-term bargaining request governed by IRS; (2) the request was made during the term of the 1982 MLA; (3) the record established that the local president was a properly designated agent of AFGE for the purpose of initiating bargaining at the level of exclusive recognition; and (4) the local president's request was made to the proper national level official of the Respondent. Judge's decision at 6.

However, notwithstanding his finding that the local president had been properly delegated authority to bargain, the Judge concluded that, under Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and Wright-Patterson Air Force Base, Ohio, 39 FLRA 1409 (1991) (Wright-Patterson IV),(2) a delegation of bargaining authority to local representatives is not effective unless the agency agrees to local level bargaining. Accordingly, the Judge concluded that, absent any evidence that the Respondent agreed to bargain with AFGE designees, the Respondent had no obligation to bargain with the local president over local proposals at the national level. In reaching this conclusion, the Judge rejected the General Counsel's premise that this case involves the issue of whether an exclusive representative has the statutory right to designate its own representative. The Judge found that such a premise fails "because the issue goes beyond merely designating a representative and amounts to whether under the [Wright-Patterson IV and Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA 1381 (1991) (Wright-Patterson III)] cases the parties must agree to bargain at a level other than the national level of recognition." Judge's decision at 8. According to the Judge, those cases "create a distinction which abrogates a union's right to designate its own representative in some circumstances." Id. at 9.

Assuming that the local president had effective authorization to negotiate, however, the Judge then proceeded to consider and reject the other defenses of the Respondent.

First, the Judge found that the record was insufficient to establish a waiver either by express agreement or bargaining history. The Judge noted that an agency must bargain in good faith during the term of a collective bargaining agreement on negotiable proposals concerning matters not included in that agreement unless the union has waived its right to bargain about the subject matter involved. Citing to IRS, the Judge further noted that the waiver may be either by express agreement or bargaining history, but must be "clear and unmistakable." The Judge concluded that neither the language in the 1982 MLA nor the language in the 1990 MLA waived the Union's right to bargain over the specific subject matter of the proposals submitted by the local president. In this regard, the Judge found that the mere fact that the parties had previously agreed on items arguably related to the general subject matter does not mean that the Union forfeited its right to initiate bargaining on a specific subject matter, citing in support Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA 1060, 1066-68 (1991) remanded, 962 F.2d 48 (D.C. Cir. 1992) (order), decision on remand, 45 FLRA 502 (1992) (Marine Corps).(3)

The Judge also dismissed the Respondent's assertion that AFGE, similar to the union in Wright-Patterson IV, is foreclosed from further bargaining because it agreed in Article 5 of the 1982 MLA that "there will be no other supplemental agreements" except for seven designated topics, which do not include incentive awards. Judge's decision at 11. The Judge noted that in Social Security Administration, 39 FLRA 633 (1991) (SSA),(4) the Authority reviewed this particular provision of the parties' MLA and found that the provision "applies only to supplemental agreements negotiated by components of the organization[.]" Id. at 634. The Judge found that the proposals in this case did not involve negotiations at the component level. Further, the Judge concluded that AFGE had not expressly waived its right to initiate bargaining on the specific subject matter contained in the local president's proposals based upon the bargaining history of the parties.

Second, the Judge determined that Proposals 1 and 2 were negotiable, but did not make a specific finding regarding the negotiability of Proposal 3.

Finally, the Judge found unpersuasive the Respondent's argument that there is no statutory right to initiate bargaining on matters unrelated to master labor agreement issues when master labor agreement negotiations are ongoing. In this regard, the Judge emphasized that the 1982 MLA was in effect when the local president made his request. The Judge found that IRS does not preclude a union from initiating bargaining on matters that it deems outside the scope of any ongoing negotiations. The Judge determined that because the 1982 MLA was effective until amended, modified or replaced, the Respondent would not be relieved of its duty to negotiate on that agreement until one of those conditions was fulfilled. Accordingly, the Judge concluded that the Respondent's argument lacked merit.

In sum, the Judge found that the Respondent had no obligation to bargain with the local president over local proposals at the national level. However, assuming that the local president had effective authorization to negotiate, the Judge rejected the Respondent's contentions that: (1) the Union waived its right to bargain either by express agreement or bargaining history; (2) the union proposals were not negotiable; and (3) there was no statutory right to initiate bargaining on matters unrelated to master labor agreement issues when master labor agreement negotiations are ongoing.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel takes exception to the Judge's conclusion that "[a]bsent any evidence that Respondent agreed to bargain with AFGE designees, Respondent had no obligation to bargain with . . . [the Union] over the local proposals at the national level." General Counsel's Brief to exceptions at 2-3 (quoting Judge's decision at 8). The General Counsel also excepts to the Judge's conclusion that under Wright-Patterson III and Wright-Patterson IV the Authority found that an agency could abrogate a union's right to designate its own representative for bargaining purposes.

The General Counsel contends that the Judge correctly found that the local president was a properly designated agent of AFGE for the purpose of initiating bargaining at the level of exclusive recognition and that his request was made to the proper national level official of the Respondent. The General Counsel asserts that there was no need for the Judge to inquire further as to whether the Respondent agreed to negotiate at the local level or whether the local president was a properly authorized official at the local level. The General Counsel contends that by determining that issues involving local level negotiations were relevant, the Judge made a "critical error." General Counsel's Brief to exceptions at 7.

Further, the General Counsel contends that Wright-Patterson III and Wright-Patterson IV do not stand for the proposition that an agency has a right to abrogate a union's statutory right to designate its representatives for the purpose of negotiations. The General Counsel argues that "[a] careful reading of both cases reveals only that an agency does not have to negotiate with a person who is not a properly authorized representative of the exclusive representative as designated by the exclusive representative." General Counsel's Brief to exceptions at 9 (emphasis in original).

Accordingly, the General Counsel argues that because the Judge properly concluded that the Union did submit negotiable proposals and did not waive its right to initiate bargaining, the Respondent violated the Statute by refusing to bargain.

B. Union's Exceptions

The Union contends that the Judge incorrectly applied and failed to distinguish Wright-Patterson III and Wright-Patterson IV. The Union argues that the facts in this case are much more closely related to Wright-Patterson III. The Union notes that in this case the Judge made a specific finding that the local president had a bona fide delegation of authority to act on behalf of the Union, as did the union official in Wright-Patterson III. The Judge, according to the Union, should have turned his attention to the Respondent's previous delegation of authority to local managers for Union-initiated local level negotiations. The Union further contends that the Judge failed to distinguish the facts in HHS from the present case. The Union argues that HHS "focused on a local level contractual right," a mid-term reopener, while this case "involves a higher level pure statutory bargaining right flowing from [NTEU v.FLRA,] 810 F.2d 295 [(1987)] in the D.C. Circuit Court." Union's exceptions at 3-4.

Accordingly, the Union contends that the Judge's decision should be overturned.

C. Respondent's Opposition and Cross-Exception

The Respondent contends that the local president had no statutory or contractual right to initiate mid-term bargaining or bind the Union at the national level on the subject of awards. The Respondent argues that since 1979, when the consolidation of the bargaining unit was approved by the Authority, the Respondent has been obligated to bargain with the AFGE only at the level of exclusive recognition "unless other procedures are mutually agreed to by the parties." Respondent's opposition and cross-exception at 8 (emphasis in original). The Respondent contends that this determination was affirmed by the Authority in HHS and that it has never agreed to and is not obligated to bargain at local levels within the consolidated unit.

The Respondent also contends that it has no obligation to conduct bargaining at the level of recognition while simultaneously bargaining over the same issue at a level below the level of exclusive recognition. The Respondent asserts that the bargaining request from the local president is inconsistent with HHS and that consolidation would be rendered meaningless if duplicative bargaining on several levels were to occur.

Further, the Respondent argues that even if the local president was entitled to initiate negotiations, AFGE waived any further right to bargain on the topic of performance awards by negotiating language on that matter in the 1982 MLA. The Respondent also contends that the 1982 MLA precluded the Union from initiating any further bargaining except over seven issues, not including awards, which the parties agreed could be subjects for supplemental bargaining during the term of that agreement. Therefore, Respondent asserts that the MLA could not be reopened except by mutual consent.

As to the General Counsel's second exception, the Respondent contends that the Judge correctly concluded that in Wright-Patterson IV the issue went beyond merely designating a representative. The real issue in that case, it argues, was not whether the union representative was appropriately designated, but rather whether such authorization included acting on behalf of and binding the union at the national level. According to the Respondent, in Wright-Patterson IV the Authority found that the union's designee had no such authority beyond the local council. The Respondent contends that based on that analysis the Judge in this case "correctly found that the Respondent had no obligation to bargain over mid-term initiatives concerning local incentive awards with a local president[.]" Respondent's opposition and cross-exception at 11.

In opposition to the Union's exceptions, the Respondent contends that the Union is attempting to cloud the real issue in this case through its misinterpretation of Wright-Patterson III and Wright-Patterson IV. The Respondent argues that in spite of the local president's alleged authorization, he did not have the authority to negotiate or act for the Union at the national level. The Respondent asserts that the local president was not a "duly authorized representative" of the Union within the meaning of section 7114(b)(2) of the Statute. Id. at 12.

The Respondent excepts to the Judge's finding and conclusion that the Respondent is obligated to bargain on mid-term proposals initiated by the Union. The Respondent submits that the Respondent is in the jurisdiction of the Fourth Circuit, which has determined that an agency is not obligated to bargain in the circumstances of this case. The Respondent contends that in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v. FLRA), the court held "that other than negotiations leading to a basic collective bargaining agreement, there is no obligation to bargain over union-initiated proposals." Respondent's opposition and cross-exception at 13. The Respondent submits that the Authority should follow the decision of the Court of Appeals for the Fourth Circuit.

D. General Counsel's Opposition to Respondent's Cross-Exception

The General Counsel contends that the Authority should deny the Respondent's cross-exception because the Respondent's position regarding union-initiated mid-term bargaining is contrary to well-established Authority precedent affirming IRS.

V. Analysis and Conclusions

We conclude that the Respondent did not violate the Statute when it failed to negotiate with the local president concerning performance awards.

A. Union's Right to Initiate Mid-term Bargaining

We reject the Respondent's contention that the Authority should adopt the 4th Circuit's decision in SSA v. FLRA, which held "that union-initiated midterm bargaining is not required by the [S]tatute and would undermine the [C]ongressional policies underlying the [S]tatute." 956 F.2d at 1281. We respectfully disagree with the 4th Circuit's decision, and we will continue to adhere to our holding in IRS that the duty to bargain in good faith that is imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters that are not contained in the collective bargaining agreement, unless the union has waived its right to bargain about the subject matter involved. See Headquarters, 127th Tactical Fighter Wing, Michigan Air National Guard, Selfridge Air National Guard Base, Michigan, 46 FLRA 582 (1992) (Selfridge National Guard Base).

B. The Local President's Bargaining Authority

For the reasons set forth in the Judge's decision, we agree that: (1) the local president made a mid-term bargaining request during the term of the parties' 1982 MLA; (2) the request was made to the properly designated management official at the level of exclusive recognition; (3) the local president was a properly designated agent of AFGE for the purpose of initiating bargaining at the level of exclusive recognition; and (4) the Union submitted at least two negotiable proposals. Thus, this case involves a request from a properly designated agent of the exclusive representative to bargain at the level of exclusive recognition concerning negotiable proposals of local interest. Based on these findings, we disagree with the Judge's ultimate conclusion that "[a]bsent any evidence that Respondent agreed to bargain with AFGE designees, it must be found that Respondent had no obligation to bargain with [the local president] over the local proposals at the national level." Judge's decision at 8.

As the Respondent points out, the Authority concluded in HHS that following certification for a consolidated unit, the level of exclusive recognition between the Respondent and AFGE was at the national level, and, therefore, the mutual obligation to bargain exists only at that level. In our view, the holding in HHS is fully consistent with a finding that the Respondent had an obligation to bargain at the national level with a properly authorized designee of AFGE. By contrast, the issue in HHS was whether local management had an obligation to bargain at the local level pursuant to a reopener clause contained in a local agreement. Similarly, both Wright-Patterson III and Wright-Patterson IV involved bargaining requests to local management by local union officials. Therefore, the Authority's analyses in those cases are not pertinent to the issues presented in this case.

In AFGE Council of Prisons Locals and Department of Justice, Bureau of Prisons and Federal Prison Industries, 5 FLRC 517 (1977) the Federal Labor Relations Council found that when "in a comprehensive bargaining unit . . . matters which pertain only to one or more facilities within the unit are proposed in negotiations at the level of recognition, such a proposal would not fall outside the obligation to bargain under section 11(a) [of Executive Order 11491, as amended] . . . simply by virtue of its less than unitwide applicability." 5 FLRC at 519 (footnote omitted). We see no reason to depart from this holding. See section 7135(b) of the Statute. Accordingly, we conclude that the Respondent was obligated to bargain with the local president, who was properly designated to act for the exclusive representative at the level of exclusive recognition, concerning mid-term bargaining proposals of local interest unless the Union waived that right through bargaining or by negotiating the terms of the 1982 MLA.(5)

C. The Respondent's Obligation to Bargain Over the Mid-Term Bargaining Proposals

1. Effect of the Supplemental Agreement Article of the MLA

We conclude that Article 5 of the parties' 1982 MLA, entitled "Supplemental Agreements," does not prevent the Union from initiating bargaining at the national level. In SSA the Authority found that the language at issue applied only to supplemental agreements negotiated by components of the organization, and not to agreements at the national or agency level. 39 FLRA at 634. As we have found that the local president's mid-term bargaining request was made at the national level, we conclude that Article 5 of the parties' 1982 MLA does not preclude bargaining.(6)

2. The Proposals Were Covered by the 1982 MLA

Having concluded that, in general, the Respondent had an obligation to bargain with the duly authorized agent of AFGE over matters of local concern and that AFGE had not waived its right to engage in such mid-term negotiations, we now turn to the question of whether the matters over which the Union sought to bargain were contained in or covered by provisions of the 1982 MLA so as to preclude further bargaining during the term of that agreement.

a. Test to Be Applied

In IRS, the Authority held that

the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters which are not contained in the agreement unless the union has waived its right to bargain about the subject matter involved. Such a waiver of bargaining rights may be established by (1) express agreement, or (2) bargaining history. Further, any such waiver must be clear and unmistakable . . . .

29 FLRA at 166. With regard to clear and unmistakable waivers, the Authority held that "the determinative factor is whether the particular subject matter of the proposals offered during contract and mid-term negotiations is the same." Id. at 167. The Authority gave no guidance in IRS as to how to determine whether matters are contained in or covered by an agreement. Shortly thereafter, however, the Authority stated that it would apply the same test to analyze whether a matter is covered by an agreement as set forth in IRS for determining a waiver by bargaining history. U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 31 FLRA 1231, 1235-36 (1988) (Army Corps of Engineers). Thus, the Authority held that in determining whether a matter is covered by an agreement, "the determinative factor is whether the particular subject matter of the proposals . . . is the same." Id. at 1235, quoting IRS at 167.

In Marine Corps the court criticized the Authority for changing the duty to bargain test set forth in IRS by "collapsing the 'contained in'/'covered by' inquiry into the 'waiver' inquiry" without an adequate explanation for the new approach. 962 F.2d at 55. The court held that there is a distinct separation between the waiver that must occur before a union can relinquish its right to bargain about a matter and the union's consequent exercise of that right through negotiation. Although the court concluded that the matters at issue in the consolidated cases before it were clearly covered by provisions in the parties' collective bargaining agreements, it chose not to "establish a definitive test for determining when an otherwise bargainable matter is 'covered by' a public sector collective bargaining agreement . . . ." Id. at 62. Consistent with the court's decision, we will establish a definitive test for determining when a matter is contained in or covered by a collective bargaining agreement.(7)

In general, a bargaining relationship involves ongoing communication between the parties, unbroken by the existence of a collective bargaining agreement. It has long been acknowledged in the private sector that a contract does not create a static period in the relationship between the employer and the employees for the term of that agreement. See National Labor Relations Board v. Jacobs Mfg. Co., 196 F.2d 680, 684 (2d Cir. 1952) (Jacobs Mfg.). As the court stated in Jacobs Mfg., the existence of a contract does not relieve an employer "of the duty to bargain as to subjects which were neither discussed nor embodied in any of the terms and conditions of the contract." Id. In the Federal sector, the U.S. Court of Appeals for the District of Columbia Circuit has examined the "broad and unqualified" language of section 7114 of the Statute in light of the private sector law and has determined that the "duty to bargain extends also to mid-term proposals initiated by either management or labor, provided the proposals do not conflict with the existing agreement." NTEU v. FLRA, 810 F.2d 295, 299 (D.C. Cir. 1987). But see SSA v. FLRA (agencies have no statutory obligation to bargain over union-initiated mid-term proposals). The overriding concern of these cases is that although bargaining agreements are intended to promote stability in the bargaining relationship, employers and unions in both the private and Federal sectors should be relatively unrestricted in their ability to resolve their disputes through collective bargaining. See Jacobs Mfg., 196 F.2d at 684; NTEU v. FLRA, 810 F.2d at 300-01.

On the other hand, we strongly agree with the court in Marine Corps that "[i]mplicit in [the] statutory purpose is the need to provide the parties to such an agreement with stability and repose with respect to matters reduced to writing in the agreement." 962 F.2d at 59. We also agree that to require an exact congruence between a provision of a contract and a proposal offered by a union in order for an agency to have no duty to engage in mid-term bargaining on the matter, would, in many cases, effectively nullify the terms of the parties' existing agreement. Accordingly, to the extent that any of our decisions require such congruence, they will no longer be followed. See, for example, Army Corps of Engineers (contract provisions involving procedures to be used in rating employees, including postponement when supervisor had less than 120 days to observe employee's performance against current requirements, did not cover proposal involving procedures to be used in rating employees who had not performed duties for 120 days due to extensive amounts of official time).

In sum, in examining whether a matter is contained in or covered by an agreement, we must be sensitive both to the policies embodied in the Statute favoring the resolution of disputes through bargaining and to the disruption that can result from endless negotiations over the same general subject matter. Thus, the stability and repose that we seek must provide a respite from unwanted change to both parties: upon execution of an agreement, an agency should be free from a requirement to continue negotiations over terms and conditions of employment already resolved by the previous bargaining; similarly, a union should be secure in the knowledge that the agency may not rely on that agreement to unilaterally change terms and conditions that were in no manner the subject of bargaining. If we meet these goals, we will have supported "the delicate balance of power between management and labor . . . ." National Treasury Employees Union v. FLRA, 856 F.2d 293, 301 (D.C. Cir. 1988).

With these principles in mind, we will set forth a framework for determining whether a contract provision covers a matter in dispute. Initially, we will determine whether the matter is expressly contained in the collective bargaining agreement. In this examination, we will not require an exact congruence of language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute. See, for example, National Labor Relations Board v. Honolulu Star-Bulletin, Inc., 372 F.2d 691 (9th Cir. 1967).

If the provision does not expressly encompass the matter, we will next determine whether the subject is "inseparably bound up with and . . . thus [is] plainly an aspect of . . . a subject expressly covered by the contract." C & S Industries, Inc., 158 NLRB 454, 459 (1966), cited with approval in Marine Corps, 962 F.2d at 60. In this regard, we will determine whether the subject matter of the proposal is so commonly considered to be an aspect of the matter set forth in the provision that the negotiations are presumed to have foreclosed further bargaining over the matter, regardless of whether it is expressly articulated in the provision. If so, we will conclude that the subject matter is covered by the contract provision. For example, under this test, and on further reflection, we agree with the court in Marine Corps that the issues raised by the unions in that case involving the reassignment of four employees and the implementation of new performance standards were inseparably bound up with provisions of the extant contracts dealing with procedures and appropriate arrangements for, respectively, the detailing of employees and the establishment of performance appraisal systems.

We recognize that in some cases it will be difficult to determine whether the matter sought to be bargained is, in fact, an aspect of matters already negotiated. For example, if the parties have negotiated procedures and appropriate arrangements to be operative when management decides to detail employees, as was the case in Marine Corps, it may not be self-evident that the contract provisions were intended to apply if management institutes a wholly new detail program, or decides during the term of the contract to detail employees who previously had never been subject to being detailed. To determine whether such matters are covered by an agreement, we will examine whether, based on the circumstances of the case, the parties reasonably should have contemplated that the agreement would foreclose further bargaining in such instances. In this examination, we will, where possible or pertinent, examine all record evidence. See, for example, Triangle PWC, Inc., 231 NLRB 492 (1977) (based on evidence of prior agreement and bargaining history, the Board determined that the subject of pension benefit levels was covered by the agreement). If the subject matter in dispute is only tangentially related to the provisions of the agreement and, on examination, we conclude that it was not a subject that should have been contemplated as within the intended scope of the provision, we will not find that it is covered by that provision. In such circumstances, there will be an obligation to bargain.

b. Application of the Test in This Case

The first two proposals submitted by the Union involve a requirement that the Agency notify the Union in writing about the availability of performance award money, including the total amount designated for such awards.

Article 17 of the parties' 1982 MLA is entitled "Incentive Awards" and discusses in some detail the Respondent's incentive awards program. Section 1 of that provision establishes that the program is intended in part to "provide incentive awards to employees whose performance is substantially in excess of normal expectation . . . ." Section 4, entitled "Awards Information," provides that the Union will be provided copies "of an annual report of incentive awards program." That provision further states that "[t]his report will show distribution of cash awards and high quality increases by grade and organization[al unit]." Thus, the parties have bargained over not only the general subject of performance awards, but also more specific matters regarding the disclosure of information relative to such awards. Applying the test discussed above, we conclude that the Union's mid-term proposals were unquestionably covered by the 1982 MLA for the reasons set forth more fully below.

Initially, we conclude that the provision of information about the availability of performance award money is an issue that is inseparably bound up with matters negotiated regarding the incentive awards program in the 1982 MLA. The parties expressly addressed issues regarding procedures for reporting awards information to the Union. Although the 1982 MLA does not provide for the provision of information about the awards program before the distribution of awards, that issue is sufficiently similar in focus that it is, in our view, inseparably bound up with the information provisions set forth in Section 4. Accordingly, the Respondent fulfilled its bargaining obligation with regard to such matters.(8)

We also conclude that the third proposal, which would require that a certain amount of the award money be set aside for employees whose appraisals are subsequently raised because they prevailed in a grievance or EEO complaint, is covered by the 1982 MLA. Article 17, Section 1 of the 1982 MLA reflects the agreement of the parties that "an effective incentive awards program should result in a more effective work force, higher productivity, and improved working environment." It describes the operation of the awards program "within the context of budgetary considerations and limitations[.]" Section 2A.4 of that provision states that the Respondent "will make reasonable efforts to allot awards in proportion to the number of bargaining unit employees within each component." It is reasonable to assume that the parties recognized that, in light of the budgetary limitations recognized by the provision, the effectiveness of the program could be diminished by the failure to retain sufficient funds to provide remedies ordered as a result of third-party proceedings. Accordingly, the Union should have contemplated that the negotiated provisions would foreclose further bargaining in such situations.(9)

Accordingly, we conclude that the Respondent was not obligated to bargain with the local president over any of the proposals submitted and did not violate the Statute by refusing to do so.(10)

VI. Order

The complaint is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. AFGE Local 1346, as an agent of AFGE, represents unit employees in approximately 20 of the Respondent's field offices in Wisconsin.

2. The cases cited at 39 FLRA 1409 and 39 FLRA 1381 are two in a series of four cases involving similar issues. For ease of recognition, we have retained the short designations used by the Judge and the parties to refer to these cases.

3. In 45 FLRA 502, the Authority dismissed the complaint in the case on instructions from the court.

4. In Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) the court set aside, on other grounds, the Authority's decision in this case.

5. Based on our finding that the local president was seeking mid-term negotiations to supplement the 1982 MLA, we reject the Respondent's argument that it was not obligated to bargain simultaneously with two representatives of the Union regarding "duplicative bargaining requests . . . ." Respondent's opposition and cross-exception at 9. The fact that the Respondent was engaged in negotiations with AFGE representatives for the parties' 1990 MLA had no bearing on its obligations to respond to a properly authorized agent of AFGE who made a mid-term bargaining request under the terms of the 1982 MLA. We note that at the time the local president's request was made on December 12, 1989, the parties' dispute over the terms of the new MLA was before the Panel. During that period the parties had agreed to maintain the terms and conditions of the 1982 agreement and the Union had no way of knowing how long that period would be. Of course, any terms agreed on in mid-term bargaining would have ceased upon the termination of the 1982 MLA. Accordingly, we find that the bargaining requests were not duplicative.

6. We also conclude, for reasons stated by the Judge, that no waiver of the Union's right to bargain is evidenced by the collective bargaining history of the 1982 MLA. In particular, we note that the Judge credited testimony by AFGE's negotiator that matters related to the proposals were never fully discussed by the parties. See Selfridge National Guard Base, 46 FLRA at 585 (to establish waiver by bargaining history, the matter "must be fully discussed and consciously explored during negotiations and the union must have consciously yielded or otherwise clearly and unmistakably waived its interest in the matter.").

7. The framework we establish today is intended to apply only to cases in which an agency asserts that it has no obligation to bargain based on the terms of a negotiated agreement.

8. Our disposition of this matter has no bearing on the question of the Respondent's obligation to provide information regarding performance or incentive awards pursuant to a valid request under section 7114(b)(4) of the Statute.

9. We note that in Article 24, Section 2C.1, the parties gave employees the right to file a grievance over "the effect or interpretation, or a claim of breach, of a collective bargaining agreement[.]" The Union framed its proposals as concerning "remedies for performance awards disputes." Judge's decision at 3. Thus, any issues involving failures to provide awards for employees whose appraisals are raised due to remedial actions would be subject to resolution through the contractual grievance procedure. See Marine Corps, 962 F.2d at 61-62.

10. In view of our disposit