File 2: Chairman Cabaniss' Opinion
[ v58 p234 ]
Concurring Opinion of Chairman Cabaniss
While I agree with the above analysis, I find that there is a more basic rationale to dispose of this complaint without having to address a party's affirmative defense. In this regard, I note that in the absence of some agreement between the parties permitting it, negotiations below the level of recognition of the parties to a collective bargaining agreement may not be compelled. See, e.g., United States Food and Drug Admin., Northeast and Mid-Atlantic Regions, 53 FLRA 1269, 1276 (1998); Dep't of the Air Force, Ogden Air Logistics Ctr., Hill AFB, Ut., 39 FLRA 1409, 1417 (1991); Dep't of Defense Dependent Schools, 12 FLRA 52, 53 (1983). Moreover, portions of agreements specifying which officials shall represent the parties in negotiations constitute permissive subjects of bargaining and either party may elect not to be bound thereby upon the expiration of the parties' agreement. United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Tex., 51 FLRA 768, 790 (1996).
The Respondent argued in its post-hearing brief, and the Judge appears to have found, that as the agreement had expired and the parties had not otherwise provided for bargaining below the level of recognition, the Respondent was not obligated to engage in bargaining below the level of recognition. [*] While the General Counsel could have filed various exceptions challenging this ruling, it chose not to. More specifically, the General Counsel could have argued that absent specific notification from the Respondent to unilaterally terminate contract provisions dealing with permissive topics of bargaining, such as the designation of bargaining representatives, the contract would continue to bind the parties. See United States Dep't. of Justice, Fed. Bur. of Prisons, FCI Danbury, Danbury, Conn. 55 FLRA 201, 205 (1999). Accordingly, as this finding, which is responsive to the Respondent's arguments in its brief, was not excepted to it becomes final and binding on the parties and serves as an additional basis for which this complaint should be dismissed. See, e.g., United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson AFB, Oh., 56 FLRA 706 (2000) (Authority relied on Judge's finding not excepted to in upholding unfair labor practice complaint against the respondent, noting that failure to except waived any challenge to reliance on that portion of the Judge's decision, per 5 C.F.R. § 2423.40(d) of the Authority's regulations).