File 2: Opinion of Member Pope
[ v58 p141 ]
Member Pope, Dissenting in Part:
I believe that the majority errs in concluding that the award is contrary to law. In reaching its erroneous conclusion, the majority fails to make a finding that is necessary to determine whether the award is deficient. The majority also ignores that the award is ambiguous on this critical point. For the reasons that follow, I would find the award ambiguous and remand it for clarification.
The majority concludes that the award is contrary to law under the BEP test. In this regard, the majority concludes, without explanation, that the award affects managements rights. The majority makes no determination as to whether the award requires substance bargaining, or impact and implementation bargaining, or both. The majority then finds that while the award satisfies prong 1 of BEP, it fails prong 2 because it does not reconstruct what the agency would have done had it not violated the parties' agreement. With particular regard to prong 2, the majority finds that the award fails to reconstruct the Agency's violation of the agreement "whether intended to require the Agency to bargain over the substance of the change in consolidation of housing units, or only over the impact and implementation of the change." Majority Opinion at 9.
This is both confused and confusing. As the Agency concedes, there is no effect on management's rights unless the award requires substance bargaining. See Exceptions at 11 ("Assuming, arguendo . . . that the award . . . finds management was obligated to negotiate over the substance of the change . . . [the] award is contrary to law."). See also, e.g., Federal Bureau of Prisons, Federal Correctional Inst., Bastrop, TX, 55 FLRA 848, 852 (1999) (impact and implementation bargaining required over changes resulting from exercise of management rights). Therefore, if the award requires only impact and implementation bargaining, then it does not affect management's rights and application of BEP is unnecessary. [n1] By finding the award deficient under BEP without making the determination necessary for BEP to [ v58 p142 ] apply in the first place, the majority not only ignores the Agency's concession but also mangles the law. [n2]
On this critical point, it is not clear whether the Arbitrator ordered bargaining over the substance of the agency decision at issue. [n3] In this regard, the Arbitrator's opinion states that the Agency violated "the bargaining process" by "failing to bargain a change in working conditions and its impact and implementation." Award at 11 (emphasis added). However, consistent with the issue statement, the award itself requires the parties only to "begin bargaining and negotiating the change in working conditions, its impact and implementation[.]" Id. at 11.
Moreover, if the award affects the Agency's rights, then the record does not permit determination of whether this renders the award deficient. In this connection, a finding that the award requires substance bargaining and, as a result, affects the Agency's rights does not necessarily mean that the award is deficient. This is because parties may agree to provisions mandating midterm bargaining over "numbers, types, and grades of employees or positions," as set out in § 7106(b)(1), and such provisions are enforceable even if they also affect management's rights under § 7106(a). See SSA, Balt., Md., 55 FLRA 1063, 1068-69 (1999). If the Arbitrator was enforcing a provision requiring substantive bargaining over "numbers, types, and grades" under § 7106(b)(1), then the award is not deficient.
I agree with the majority that the only contractual violation specified by the Arbitrator is the Agency's violation of Article II by its failure to take notes during bargaining sessions. [n4] However, the record is unclear whether the Arbitrator found an additional violation by the Agency. The Arbitrator found specifically that the Agency "clearly violated the bargaining process by failing to bargain a change in working conditions and its impact and implementation, and in preparation of minutes on the three meetings." Award at 11 (emphasis added). There is absolutely no support for the majority's construction of the reference to "the bargaining process" as "simply restating" the Arbitrator's finding concerning note-taking. Majority Opinion at 10. Among other things, this construction reads the word "and" out of the sentence.
In sum, the record does not permit determination of whether the award requires substance bargaining and, if it does, whether it enforces a contractual provision requiring such bargaining. In these circumstances, the Authority's practice is to remand the award to the parties, for resubmission to the Arbitrator, absent settlement, to clarify the award, and consistent with this practice, I would remand for clarification here. See United States Dep't of the Air Force, Air Force Materiel Comm., Wright-Patterson AFB, Wright-Patterson, Ohio, 55 FLRA 169, 173-74 (1999).
Accordingly, I dissent.
File 1: Authority's Decision in 58 FLRA No. 25 and Appendix
File 2: Opinion of Member Pope
Footnote # 1 for 58 FLRA No. 25 - Opinion of Member Pope
The Agency claims that, if the award requires impact and implementation bargaining, then it has already engaged in this bargaining. However, the Arbitrator found -- and the Agency does not dispute -- that the record was "void of any direct evidence" concerning the parties' bargaining. Award at 10. Therefore, I would reject the Agency's claim.
Footnote # 2 for 58 FLRA No. 25 - Opinion of Member Pope
Assuming that the Arbitrator intended to order substantive bargaining, the award affects the Agency's rights and it is necessary to apply BEP. See AFGE, Local 3807, 54 FLRA 642, 646 (1998) (proposal requiring agency to assign particular work to two employees rather than one affects right to assign work); Fraternal Order of Police, Lodge 1F (R.I.) Fed., 32 FLRA 944, 957-58 (1988) (right to determine internal security practices includes right to determine the "degree . . . of staffing . . . to maintain the security of a facility.").
Footnote # 3 for 58 FLRA No. 25 - Opinion of Member Pope
I note, however, that even assuming that, as the Agency asserts, the award requires both substance and impact and implementation bargaining, nothing in law or logic dictates that it is impossible to engage in both. Accordingly, I would deny the Agency's claim that the award is deficient because, by requiring both substance and impact and implementation bargaining, it is impossible to implement.
Footnote # 4 for 58 FLRA No. 25 - Opinion of Member Pope
This violation, standing alone, would not support an award requiring substance bargaining because, even assuming that Article II was negotiated pursuant to § 7106(b), thereby satisfying prong 1 of BEP, the award requiring bargaining does not, under prong 2, reconstruct the Agency's violation. As a result, if the Agency's only violation was of Arti