Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals and Social Security Administration, Region IX, Mesa District Office, Mesa Arizona and American Federation of Government Employees, Local 3694, AFL-CIO

[ v55 p1122 ]

55 FLRA No. 182

SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL COUNCIL OF
SSA FIELD OPERATIONS LOCALS
(Charging Party)

and

SOCIAL SECURITY ADMINISTRATION
REGION IX, MESA DISTRICT OFFICE
MESA, ARIZONA
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3694, AFL-CIO
(Charging Party)

WA-CA-60600
DE-CA-70354

_____

DECISION AND ORDER

November 30, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

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 Charging Parties. [n2]  The Respondent filed an opposition to the Charging Parties' exceptions.

      The case involves two complaints that were consolidated for hearing. In Case No. WA-CA-60600, the amended complaint alleges that Respondent, Social Security Administration (Respondent SSA) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it refused to bargain with Charging Party, National Council of SSA Field Operations Locals (Charging Party Council) over SSA's allocation of staff for field offices and teleservice centers. The amended complaint further alleges that Respondent SSA violated section 7116(a)(1), (5), and (8) when it refused to provide information necessary and relevant to bargaining over such allocation. Lastly, the amended complaint alleges that Respondent SSA violated section 7116(a)(1) and (5) by repudiating a provision in the parties' collective bargaining agreement. In Case No. DE-CA-70354, the complaint alleges that Respondent, SSA, Region IX, Mesa District Office, Mesa, Arizona (Respondent Mesa) violated section 7116(a)(1) and (5) of the Statute when it refused to bargain with Charging Party American Federation of Government Employees, Local 3694, AFL-CIO (Charging Party Local) over union-initiated proposals concerning matters set forth in section 7106(b)(1) of the Statute. Alternatively, the complaint alleges that Respondent Mesa violated the Statute by repudiating a provision in the parties' collective bargaining agreement.

      The Judge found that Respondent SSA and Respondent Mesa did not violate the Statute as alleged and recommended that the complaints be dismissed.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions, to the extent consistent with this decision, that the General Counsel failed to establish that the Respondents violated the Statute as alleged. We also adopt the Judge's recommended Order dismissing the complaints.

II.     Background

      The facts are fully set forth in the attached Judge's decision and are briefly summarized here. Charging Party Council and Charging Party Local are agents of the American Federation of Government Employees, AFL-CIO (AFGE), the exclusive representative of a nationwide consolidated unit of SSA employees. Respondent SSA and AFGE are parties to a collective bargaining agreement dated March 5, 1996 (1996 National Agreement), which covers the employees in the nationwide unit. Two years prior to the 1996 National Agreement, Respondent SSA and AFGE became parties to a National Partnership Agreement that included an Appendix A, dated June 22, 1994 (1994 [ v55 p1123 ] National Partnership Agreement), that established a National Partnership Council (NPC). [n3] 

      The 1996 National Agreement includes a Partnerships Article. Section 4 of the 1996 Partnerships Article provides that in areas where there is no conflict with the 1996 Partnerships Article, the 1994 National Partnership Agreement remains in effect. [n4]  The 1996 National Agreement also includes an article on Management Rights and Article 4, "Negotiations During the Term of the Agreement on Management Initiated Changes." [n5] 

1.     Charging Party Council

      By letter dated May 6, 1996, Charging Party Council requested to bargain over Respondent SSA's allocation of staff for field offices and teleservice centers within the nationwide unit. Specifically, Charging Party Council requested to negotiate, pursuant to section 7106(b)(1) of the Statute, the numbers, types, and grades of employees or positions assigned to field offices and teleservice centers, including sub-components. The letter also requested information on the existing staff allocation, pursuant to section 7114(b)(4) of the Statute. By letter dated July 26, 1996, Respondent SSA responded to Charging Party Council's requests. Respondent SSA, in pertinent part, asserted that decisions on hiring, budget, and the allocation of staff were management rights and, therefore, declined to bargain substantively. Respondent SSA did not supply the requested information, and did not respond further to the May 6, 1996 request. The parties agree that Charging Party Council's May 6 bargaining request concerns section 7106(b)(1) matters. Later, Charging Party Council filed an unfair labor practice (ULP) charge that led to the complaint in Case No. WA-CA-60600.

2.     Charging Party Local

      In January 1997, Charging Party Local submitted to Respondent Mesa a request, including two proposals, to initiate negotiations over the working conditions of service representatives at the district office. [n6]  Respondent Mesa refused to bargain with Charging Party Local over the proposals. The parties agree that the proposals concern section 7106(b)(1) matters. Subsequently, Charging Party Local filed a ULP charge that led to the complaint in Case No. DE-CA-70354.

III.     Judge's Decision

      The parties agreed that the disputed proposals concerned section 7106(b)(1) matters. The Judge found, therefore, that the issues presented were: (1) Whether Respondent SSA and Respondent Mesa violated the Statute by refusing to bargain with the Charging Parties because Section 2(d) of E.O. 12871 constitutes an agency election to bargain over section 7106(b)(1) matters; and (2) if E.O. 12871 does not constitute such an election, then whether Respondent SSA's and Respondent Mesa's refusal to bargain repudiated the 1996 Partnerships Article. [n7] 

      With respect to the first issue, the Judge concluded that Section 2(d) of E.O. 12871 did not constitute an election requiring Respondent SSA and Respondent Mesa to bargain.

      With respect to the second issue, the Judge applied the analytical framework set forth in Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA 858 (1996) (Scott AFB) [ v55 p1124 ] for determining whether a party's failure or refusal to honor an agreement constitutes a repudiation, and found that Respondent SSA did not repudiate the 1996 Partnerships Article. The Judge noted that the framework examines two elements: (1) the nature and scope of the alleged breach of the agreement (i.e., was the breach clear and patent?); and (2) the nature of the agreement provision allegedly breached (i.e., did the provision go to the heart of the parties' agreement?).

      The Judge found that the Respondents' actions did not constitute a "clear and patent breach of the Partnerships Article." Judge's Decision at 18. Specifically, the Judge found that Section 2 of the 1996 Partnerships Article--providing that "Administration and Union representatives will bargain in good faith, including bargaining on issues which may fall under 7106(b)(1), using interest-based bargaining (IBB) with the objective of reaching agreement"--could reasonably be interpreted as not expressing an election, but rather expressing a commitment to good faith bargaining when an election to bargain has been made. The Judge also found that the 1996 Partnerships Article could reasonably be interpreted as only applying to actions of the partnership councils, and further, that Article 4 of the 1996 National Agreement could reasonably be interpreted as not requiring bargaining on the subject matters involved here.

      The Judge based his determinations--that the language of Section 2 could reasonably be interpreted as not constituting an election; that the 1996 Partnerships Article could reasonably be interpreted as only applying to actions of the partnership councils; and that Article 4 of the 1996 National Agreement could reasonably be interpreted as not providing for bargaining on the subject matters involved--on interpretations of Sections 1 and 3.C. of the 1996 Partnerships Article, Article 4 of the 1996 National Agreement and the 1994 National Partnership Agreement, and on the bargaining history of the 1996 Partnerships Article. In particular, the Judge found that Section 1 of the Partnerships Article focuses on transforming SSA into a more efficient agency rather than on conditions of employment of bargaining unit employees, while Section 3C provides that "Councils shall abide by the general principles set forth above." Id. The Judge stated that such principles include the language in Section 2.

      The Judge further determined that the 1994 National Partnership Agreement continues to govern the NPC where it does not conflict with the 1996 Partnerships Article, and that the 1994 National Partnership Agreement contains a provision requiring a "joint consensus decision" by the NPC in deciding "whether or not to accept an issue" in the defined areas of retained rights, regular issues, and test issues. Id. He found that the "instant bargaining requests were not accepted, or processed, under [this] provision" and, therefore, under the 1994 National Partnership Agreement, "the normal collective bargaining procedures apply." Id.

      The Judge determined that the bargaining history also supported a finding that the Partnerships Article was intended to apply only to the parties' partnership relationship. According to the Judge, "[t]here [was] no evidence of a clear meeting of the minds that management at all levels, and in all situations, was making a decision to elect to bargain on all permissive subjects, such as bargaining mid-term, at the Union's initiation, on how the Agency would be staffed." Id. at 19. Also, according to the Judge, the Union's initial proposal, which would have provided for bargaining over section 7106(b)(1) matters, was withdrawn in favor of the more ambiguous language of Section 2.

      Examining Article 4 of the 1996 National Agreement, the Judge found that this provision provides only for mid-term bargaining by the Union on management-initiated changes in conditions of employment, which were not involved here. The Judge also found that Appendix A of the 1994 National Partnership Agreement could be reasonably interpreted as limiting other mid-term bargaining to "two `test issues[,]'" which were not involved in the disputed bargaining requests. Id.

      Based on the evidence, the Judge determined that even if the Respondents had breached the 1996 National Agreement, the breach was not clear and patent. [n8]  He concluded, therefore, that no repudiation occurred. In view of this conclusion, the Judge found it unnecessary to examine the second element set forth in Scott, AFB. Accordingly, he concluded that the Respondents did not violate sections 7116(a)(1) and (5) of the Statute.

      The Judge further concluded that the Respondent SSA did not violate the Statute by failing to furnish the requested information. The Judge found that the information sought by Charging Party National was for the purpose of bargaining on section 7106(b)(1) matters and as Respondent SSA did not elect to bargain on these matters, the information sought was not "'necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining'" as required by section 7114(b)(4). Id. at 21 (quoting section 7114(b)(4)(B) of the Statute).

      Accordingly, the Judge concluded that the Respondents did not violate the Statute as alleged and recommended that the complaints be dismissed. [ v55 p1125 ]

IV.     Positions of the Parties

A.     Charging Parties' Exceptions

      AFGE, through its national office, filed the exceptions on behalf of Charging Party Council and Charging Party Local. AFGE excepts to the Judge's decision on four bases. First, AFGE contends that E.O. 12871 constitutes an agency election to bargain that is enforceable under the Statute.

      Second, AFGE asserts that the Judge erred in concluding that Respondents SSA and Mesa did not repudiate the National Agreement. Contrary to the Judge's conclusion, AFGE argues that Section 2 of the 1996 Partnerships Article contains a clear expression of management's intent to bargain over all section 7106(b)(1) matters. According to AFGE, Section 2 of this article "explicitly" states that the "parties will `bargain in good faith, including bargaining on issues which may fall under 7106(b)(1).'" Exceptions at 9 (quoting 1996 Partnerships Article, Section 2). AFGE asserts that the Judge's determination that this language was not an agreement to bargain section 7106(b)(1) matters "'but a commitment to good faith bargaining when an election has been made' is absurd and renders the . . . language a nullity . . . ." Id. at 10 (quoting Judge's Decision at 18).

      AFGE further argues that there is no language in the 1996 Partnerships Article that supports the Judge's conclusion that it only applies to actions of partnership councils. According to AFGE, the language in Section 1 of the 1996 Partnerships Article indicates that the Article applies to all aspects of the SSA/AFGE relationship. AFGE also argues that the Judge erred in ruling that the bargaining history of the 1996 Partnerships Article supports Respondents SSA's and Mesa's interpretation of the provision. According to AFGE, the language in dispute "expresses a clear commitment to bargain §[]7106(b)(1) matters." Id. at 12. Referencing testimony cited in the Judge's decision, AFGE also contends that the bargaining history demonstrates that the Partnerships Article applies to bargaining in any forum.

      Third, AFGE asserts that the Judge erred in finding that it did not have the right under the Statute to engage in mid-term bargaining in the absence of management-initiated changes. According to AFGE, the Judge effectively found that AFGE "waived its right to initiate mid-term bargaining in negotiating the [1996 National] Agreement." Id. at 13. AFGE argues that the evidence does not show that it waived its right to initiate mid-term bargaining.

      Fourth, AFGE contends that it requested information in connection with its bargaining request and that because Respondent SSA was obligated to bargain over section 7106(b)(1) matters, the Judge erred by finding that Respondent SSA did not violate the Statute by refusing to provide the information.

B.     Respondents' Opposition

      The Respondents assert that the Judge did not err in concluding that the Executive Order does not constitute an election to bargain over section 7106(b)(1) matters.

      The Respondents also assert that the Judge correctly determined that the Respondents did not repudiate the 1996 Partnerships Article. The Respondents argue that the language in Section 2 of this Article referenced by AFGE, that "the parties will bargain in good faith, including bargaining on issues which may fall under 7106(b)(1)[,]" does not show an agreement to bargain on issues that may fall under section 7106(b)(1). Opposition at 3 (quoting Exceptions at 9, emphasis in exceptions omitted). Rather, according to the Respondents, the language shows "a commitment to good faith bargaining once an election has been made by the agency." Id. The Respondents assert that "[t]o decide otherwise would negate the . . . article on Management Rights, . . . [and] would also make non[sense] out of the [1994 National Partnership Agreement] referenced [in Section 4 of the 1996] National Agreement, which spell out how the parties will act in regard to dealing with [section] (b)(1) issues." Id.

      The Respondents further assert that the 1996 Partnerships Article only applies to actions of partnership councils. In support, the Respondents rely on Section 3.C. of the 1996 Partnerships Article, which provides that "Councils shall abide by the general principles set forth above." Id. The Respondents contend that their actions do not constitute a clear breach of 1996 National Agreement, but instead, a reasonable interpretation of it.

      The Respondents also argue that the Respondent SSA was not required to provide the requested information. The Respondents assert that as the matter in issue was not subject to bargaining by the Respondent SSA because it did not elect to bargain, the requested information was not necessary within the meaning of section 7114(b)(4). [ v55 p1126 ]

V.     Analysis and Conclusions

A.     Executive Order 12871 Does Not Constitute an Agency's Statutory Election to Bargain Over Section 7106(b)(1) Matters

      In PTO II, the Authority, Member Wasserman dissenting, determined that Section 2(d) of E.O. 12871 does not constitute an election under the Statute to bargain over section 7106(b)(1) subjects. As the Authority explained, Section 2(d) "unambiguously states [that it is] a direction by the President to agency officials to engage in bargaining over [the] subjects defined in the Statute." PTO II, 54 FLRA at 387 (emphasis added). The Authority also explained that construing Section 2(d) as an internal management direction is compelled by the clear language of Section 3 of the Executive Order. Id. at 381-82. In NAGE, the U.S. Court of Appeals for the District of Columbia affirmed the Authority's interpretation. See NAGE, 179 F.3d at 950, 951.

      In this case, AFGE excepts to the Judge's decision that Section 2(d) of the Executive Order does not constitute an agency election under section 7106(b)(1) on the same grounds as those considered in PTO II. Therefore, for the reasons set forth fully in PTO II, we deny the exception.

B.     The Preponderance of the Evidence Supports the Judge's Conclusion that the Respondents Did Not Repudiate the 1996 National Agreement

      In Scott AFB, the Authority explained that it is not always necessary to determine the precise meaning of a provision in order to analyze an allegation of repudiation. Specifically, in those situations where the meaning of a particular term in an agreement is unclear, acting in accordance with a "reasonable interpretation" of that term, even if it is not the only reasonable interpretation, does not constitute a clear and patent breach of the terms of the agreement. Scott AFB, 51 FLRA at 862.

      We find, in agreement with the Judge and based on his reasoning, that the Respondents' interpretation of the 1996 National Partnerships Article is reasonable. [n9]  In particular, we find, in agreement with the Judge, that the Respondents' interpretation of the language of Section 2 as expressing a commitment to good faith bargaining [n10]  once an election has been made, [n11]  and the Respondents' interpretation of the Partnerships Article as only applying to actions of the partnerships councils, are reasonable. [n12] 

      Also, contrary to AFGE's assertion, we find that the Judge's decision does not hold that it waived its rights to initiate mid-term bargaining in negotiating the 1996 National Agreement. AFGE's position confuses the existence of any right to initiate bargaining during the term of a collective bargaining agreement, either under the Statute or the contract, with the scope of these bargaining rights. [n13]  The existence of mid-term bargaining rights does not indicate whether such bargaining involves an election to bargain over permissive subjects of bargaining. The Judge, therefore, did not err in finding no violation of the Charging Parties' asserted right to engage in mid-term bargaining. [ v55 p1127 ]

C.     The Judge Correctly Determined that Respondent SSA Was Not Required Under Section 7114(b)(4) of the Statute to Furnish the Requested Information

      Section 7114(b)(4) of the Statute provides that an agency shall, upon request, furnish the exclusive representative, to the extent not prohibited by law, data which is normally maintained in the regular course of business; which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and which does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining. 5 U.S.C. § 7114(b)(4). In Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661, 669-70 (1995), the Authority set forth the analysis for determining whether information is "necessary" under section 7114(b)(4). The Authority held that a union requesting information under section 7114(b)(4) must establish a particularized need for the requested information by articulating, with specificity, why it needs that information, including the uses to which the information will be put, and the connection between those uses and the union's representational responsibilities under the Statute.

      In this case, Charging Party Council requested the information in connection with its request to bargain over section 7106(b)(1) matters relating to staffing. AFGE relies solely on Charging Party Council's asserted right to engage in bargaining over section 7106(b)(1) matters as the basis for Charging Party Council's particularized need for the information. As Charging Party Council had no such right in this case, AFGE's showing of a particularized need must fail. [n14]  Accordingly, Respondent SSA did not violate the Statute when it refused to furnish the information.

VI.     Order

      The complaints are dismissed.


APPENDIX

1.     1994 National Partnership Agreement

1994 Partnership Agreement

OBJECTIVES
[T]he partners agree to the following objectives that are in the spirit of the President's Executive Order 12871.
. . . .
(8) Ensure full implementation of the Executive Order 12871 over all 7106(b)(1) issues, whether at the union's request or as the result of proposed Agency action, immediately upon signing of this agreement.
. . . .
NPC OPERATION PROCESS/PROCEDURES
An issue can be proposed for NPC consideration by either the union or management.
Whether or not to accept and then jointly decide an issue within the partnership agreement will require a joint consensus decision at the outset.
When an issue is accepted for resolution by Partnership Council members, they will first agree upon a time deadline and an appropriate alternate dispute-resolution (ADR) process for that issue, in the event no agreement is reached, refer to Appendix A.
. . . .

2.     1994 National Partnership Agreement, Appendix A

APPENDIX A

Initially, issues will be accepted under one of threecategories: retained-rights issues, regular issues and test issues.
If the Partners do not wish to accept an issue for consideration, these matters will be handled under collective bargaining procedures using interest based techniques.
a.     Retained-Rights Issues:
Retained rights are management and union statutory and contractual rights. These issues will be fully explored and discussed in the hope of reaching a consensual, integrative recommendation to [ v55 p1128 ] the presenting party-- management or union. However, the final decision as to whether or not to fully implement the Partnership decision(s) remains with the presenting party. In the event a decision cannot be reached within the agreed timeframe, there will be no further action by the Council.
b.     Regular Issues:
Regular issues are statutory rights including 7106(b)(1). These issues, proposed by any party to the NPC, will proceed within the accepted time deadline to a consensual, integrative agreement. If no agreement is reached, the previous agreed-upon ADR process will be initiated.
c.     Test Issues:
Test issues are defined as mid-term bargaining issues. For the interim period, it is agreed that the Union may raise such issues for consideration. It is agreed to test at least two (2) such issues. The process, time frames and evaluation for the test will be defined by a joint union/management team. Upon completion of the second test the Partnership will timely decide how to proceed on such issues.

3.     1996 Partnerships Article

Partnerships

Section 1.     Introduction
The parties recognize that a new relationship between labor and management as partners is essential for transforming the Social Security Administration into an agency that works more efficiently and effectively and better serves customer needs. This partnership involves the open sharing of information at the earliest predecisional stage, thereby engendering mutual trust and respect to better serve the agency's mission.
Section 2.     Principles
Administration and Union representatives will bargain in good faith, including bargaining on issues which may fall under 7106(b)(1), using interest-based bargaining (IBB) with the objective of reaching agreement. Every effort shall be made to reach agreements that address the interests of both parties. The procedures for implementing IBB, facilitation, and use of alternate dispute resolution procedures, will be developed by the National Partnership Council.
Section 3.     Partnership Councils
A.     The parties have established a Partnership Council at the Agency level. The existence of an Agency level council will not preclude the establishment of lower level councils where mutually agreed to by the parties.
B.     Partnership Councils shall include an equal number of Administration and Union appointed members. The membership of the National Partnership Council has previously been determined by the parties.
C.     Councils shall abide by the general principles set forth above.
. . . .
Section 4.     Other
To the extent that no conflict exists, this article does not supersede the SSA/AFGE Memorandum of Understanding of June 22, 1994.

See Judge's Decision at 7-8 for the remaining provisions of the 1996 Partnerships Article.


File 1: Authority's Decision in 55 FLRA No. 182
File 2: Opinion of Member Wasserman
File 3: ALJ Decision


Footnote # 1 for 55 FLRA No. 182 - Authority's Decision

   Member Wasserman's dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 55 FLRA No. 182 - Authority's Decision

   The General Counsel also filed exceptions to the Judge's decision. However, the General Counsel subsequently filed a motion to withdraw its exceptions, asserting that the issue raised in the exceptions had been resolved by the Authority in U.S. Department of Commerce, Patent and Trademark Office, 54 FLRA 360 (1998) (Member Wasserman concurring in part and dissenting in part) (PTO II), petition for review denied, National Association of Government Employees, Inc. v. FLRA, 179 F.3d 946 (D.C. Cir. 1999) (NAGE). We grant the General Counsel's motion. Accordingly, we will not discuss the General Counsel's position further in this decision.


Footnote # 3 for 55 FLRA No. 182 - Authority's Decision

   The relevant portions of the 1994 National Partnership Agreement, including Appendix A to that Agreement, are set forth in the Appendix to this decision.


Footnote # 4 for 55 FLRA No. 182 - Authority's Decision

   The relevant text of the 1994 National Partnership Agreement and the 1996 Partnerships Article are set forth in the Appendix to this decision.


Footnote # 5 for 55 FLRA No. 182 - Authority's Decision

   The Management Rights Article essentially restates the statutory rights of management set forth in section 7106 of the Statute. Article 4 establishes procedures for notice by management to AFGE, at the appropriate component level, of proposed changes in conditions of employment during the term of the agreement and for bargaining by AFGE, upon request, at corresponding levels of the agency.


Footnote # 6 for 55 FLRA No. 182 - Authority's Decision

   The proposals were as follows:

   Proposal 2

[T]he District Office will provide two (2) bargaining unit service representatives with computer terminals, without relocating any of the terminals from the claims representatives' desks and no more than one from the front end interviewing area[.]
Proposal 3
[T]he District Office will take the necessary action to increase the full time equivalent (FTE) allocation for additional bargaining unit employees by two slots, which will be filled by service representative positions.

Judge's Decision at 14.


Footnote # 7 for 55 FLRA No. 182 - Authority's Decision

   The Judge noted that the issue of whether Section 2(d) of E.O. 12871 constitutes an agency election to bargain under section 7106(b)(1) of the Statute was pending before the Authority in U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 858 (1997) (partial decision and procedural order) (PTO I) and four other cases. The Authority issued its final decision and order in that case in PTO II, 54 FLRA 360. The Authority found that E.O. 12871 did not effect an election to bargain under section 7106(b)(1) that is enforceable in a ULP proceeding. The decision in PTO II was appealed in Patent Office Professional Office Association v. FLRA, 179 F.3d 946 (D.C. Cir. 1999), which was consolidated with NAGE. The D.C. Circuit denied the petition for review in NAGE, concluding that E.O. 12871 does not constitute a section 7106(b)(1) election.


Footnote # 8 for 55 FLRA No. 182 - Authority's Decision

   The Judge specifically noted that he did not find that Respondent SSA and Respondent Mesa breached the agreement.


Footnote # 9 for 55 FLRA No. 182 - Authority's Decision

   We find it unnecessary to address, and therefore do not adopt, the Judge's statement that, if the Partnerships Article constituted an election to bargain, then the Article would be inconsistent with the management rights provision of the parties' agreement.


Footnote # 10 for 55 FLRA No. 182 - Authority's Decision

   We do not agree with the dissent's conclusion that the Respondents' interpretation of the contract would render Section 2 meaningless. The dissent asserts, in this regard, that the Statute implies a requirement to bargain in good faith and that the parties should not be interpreted to have agreed to merely incorporate this requirement into a contract. Even assuming that the dissent is correct that the Statute imposes this particular standard on permissive bargaining, see, PTO-II, 54 FLRA at 388 n. 28, the Authority has long held that parties may incorporate statutory requirements into their agreements. See National Treasury Employees Union, Chapter 213 and 228 and United States Department of Energy, Washington, D.C., 32 FLRA 578, 581 (1988). Such incorporation does not render the contract meaningless.


Footnote # 11 for 55 FLRA No. 182 - Authority's Decision

   We note that the parties, in their arguments, do not assert that objective 8 in the 1994 National Partnership Agreement is relevant to whether the Respondents repudiated the 1996 Partnerships Article. The Judge, in his discussion and conclusions, also did not mention objective 8, or determine its meaning. As such, unlike our dissenting colleague, we do not address that provision in reaching our decision.


Footnote # 12 for 55 FLRA No. 182 - Authority's Decision

   This interpretation of the 1996 Partnerships Article is separate from the Respondents' interpretation of Section 2 of this Article as incorporating a good faith requirement. The dissent does not address this separate ground for finding the Respondent's interpretation rea