File 2: Opinion of Member Wasserman
[ v57 p180 ]
Opinion of Member Wasserman Concurring In Part and Dissenting In Part
I concur with the majority's resolution of this case with the exception of two issues. The first is whether, as to Proposals 1 and 10, the facts of this case establish a "bargaining obligation dispute" within the meaning of § 2424.40(b) of our regulations, 5 C.F.R. § 2424.40(b) (2000), so that issuance of a bargaining order is appropriate. The majority states (Slip op. at 11-12) that a negotiated election to bargain on § 7106(b)(1) matters, like Article 4 of the parties' negotiated agreement in this case, cannot give rise to a statutory duty to bargain. Rather, such an election can only be enforced under the parties' negotiated grievance procedure. Therefore, a bargaining obligation dispute cannot be said to exist in this case within the meaning of § 2424.40(b), and a bargaining order cannot issue. I disagree with this analysis, and would hold that the facts of this case do establish that a statutory bargaining obligation dispute exists here, and that a bargaining order should issue.
As I stated in my dissent in United States Department of Commerce, Patent and Trademark Office, 54 FLRA 360, 392 (1998) (PTO), aff'd on other grounds sub nom. National Association of Government Employees v. FLRA, 179 F.3d 946 (D.C. Cir. 1999), [n1] the Statute's obligation to bargain in good faith extends to bargaining on electively negotiable matters under § 7106(b)(1) between the time of the election and a revocation of that election or a bargaining impasse. 54 FLRA at 401-03. I view adherence to these principles as constituting more than mere formalities. The collective bargaining process entails both rights and responsibilities for parties. So when an agency commits itself to agreeing to negotiate about a union proposal concerning a § 7106(b)(1) matter, it should, until revocation of the election or bargaining impasse, be held to its commitment in the same way as it is in connection with a mandatory bargaining subject.
In this case, we indisputably have an election to bargain on § 7106(b)(1) matters that remains in effect, but the record does not reflect a revocation of that election or a bargaining impasse having been reached as to Proposals 1 and 10. [n2] The Agency only states that it bargained sufficiently to satisfy its obligation under Article 4 of the parties' negotiated agreement. Agency Statement of Position at 12. I find these facts sufficient to give rise to a statutory obligation on the part of the Agency to bargain in good faith on Proposals 1 and 10, until either the election is properly revoked, or an impasse in bargaining on the proposals is reached. Because the Agency does not allege that either of these events have occurred, I would find that the Agency has not bargained in good faith on the proposals, and would issue a prospective bargaining order in this case requiring it to do so pursuant to § 2424.40(b) of our regulations.
I do not attach the importance that the majority does to the fact that the § 7106(b)(1) election here is in the form of a negotiated agreement provision, which election itself is a permissive bargaining subject. In my view, the form that the Agency chooses to make its election, which election is grounded in § 7106(b)(1) of the Statute and has no counterpart in the private sector, is irrelevant to whether a refusal to bargain on a specific § 7106(b)(1) matter can constitute a bargaining obligation dispute under the Statute and our regulations. An agency's election to bargain on § 7106(b)(1) matters, regardless of whether the Agency chooses to set the election out in a negotiated agreement or in an agency directive, is an act that is specifically and expressly provided for in the Statute itself. It is therefore an act that has unique significance in terms of the Statute's bargaining obligation. [n3]
The majority's reliance on the cases cited in note 9 of its opinion do not support its conclusion. First, the cited cases deal with both non-§ 7106(b)(1) permissive matters (such as National Air Traffic Controllers Association, Rochester Local, 56 FLRA 288 (2000) (NATCA)); and § 7106(b)(1) permissive matters (such as Social Security Administration, Baltimore, Md., [ v57 p181 ] 55 FLRA 1063 (1999)). As I have stated in this dissent, I think there are sound reasons grounded in the Statute to distinguish between these two types of permissive bargaining matters. Second, the § 7106(b)(1) cases only establish that the grievance arbitration procedure is available to enforce agreement provisions concerning § 7106(b)(1) permissive matters. I certainly continue to concur in that holding. But to infer from this holding, as I believe the majority does, that permissive bargaining provisions cannot therefore form the basis of a statutory bargaining obligation dispute is in my view incorrect. Third, the majority incorrectly characterizes cases such as NATCA as holding that agreement to a permissive bargaining subject "does not convert permissive bargaining subjects under the Statute." However, NATCA relied for this proposition on Allied Chemical & Alkali Workers of America v. Pittsburgh Plate Glass Company, 404 U.S. 157 (1971) (Pittsburgh Plate Glass). But Pittsburgh Plate Glass says that by agreeing to a permissive subject, the parties "do not make the subject a mandatory topic of future bargaining." Pittsburgh Plate Glass, 404 U.S. at 187 (emphasis supplied.) The majority opinion does not contain the limiting language of the Supreme Court's opinion. That omission is important here because we are not concerned in this case with the effect of a permissive bargaining provision after expiration of an agreement.
The second point on which I dissent concerns Proposal 8. If the parties engage in permissive bargaining and agree that the employees may determine whether to use the APPS system (Proposal 1), then a proposal holding an employee harmless for that discretionary determination must also fall within the permissive area. It makes no sense to me to allow the Union to negotiate on Proposal 1 in this case, and yet bar them from negotiating on Proposal 8. The two proposals are too inextricably related to separate them. To do otherwise would create a right without a remedy.
File 1: Authority's Decision in 57 FLRA No. 43
File 2: Opinion of Member Wasserman
Footnote # 1 for 57 FLRA No. 43 - Opinion of Member Wasserman
I recognize that courts such as the D.C. Circuit have determined that Executive Order 12,871 did not constitute an election to bargain on § 7106(b)(1) matters. However, I continue to adhere to the specific points from the PTO dissent mentioned here in the text, which are not affected by the courts' decisions.
Footnote # 2 for 57 FLRA No. 43 - Opinion of Member Wasserman
While the initial termination date of the agreement was in 1999, the parties agreed that the agreement would remain in effect until a new agreement was negotiated. This continuation would include provisions concerning permissive bargaining subjects, unless a party notifies the other that it will no longer be bound by those permissive provisions. E.g., United States Dep't of Justice, Fed'l Bureau of Prisons, FCI Danbury, Danbury, Conn., 55 FLRA 201, 206 n.11 (1999). There is no evidence that such notice was given here.
Footnote # 3 for 57 FLRA No. 43 - Opinion of Member Wasserman
I note further that, in my view, any provision concerning a § 7106(b)(1) matter that the parties agree to incorporate in their negotiated agreement can form the basis for a statutory unfair labor practice violation, if the evidence shows a repudiation of that provision. Thus, whatever may be the rule concerning repudiation of a provision that is permissive