File 2: Opinion of Member Pope

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Dissenting opinion of Member Pope:

      By its decision today, the majority evidences both its contempt for collective bargaining and its relentless determination to construe the Statute in a way that favors only one side -- management -- of the labor-management relationship. Doing so, the majority scraps a bright-line rule that is firmly rooted in the Statute and well known to the parties. The rule is simple: where agencies are required by law to bargain over the substance of a change in conditions of employment, they must do so without regard to the impact of the change. In its place, the majority imposes a new rule by which bargaining need not occur where a change in conditions of employment is de minimis.

      The majority's determination to apply the de minimis standard in "substance" cases --an application that has been uniformly rejected for 25 years by every complement of Authority Members since the inception of the Statute -- is bad law and worse policy. It will discourage bargaining and promote an entirely new generation of bargaining disputes, directly contrary to Congress' finding that collective bargaining "facilitates and encourages the amicable settlements of dispute[s]." 5 U.S.C. § 7101(a)(1)(C). Accordingly, I dissent.

      The requirements of the Statute could not be plainer: "Except as otherwise provided" by the Statute, employees have the right "to engage in collective bargaining with respect to conditions of employment . . . ." 5 U.S.C. § 7102. As the U.S. Court of Appeals for the District of Columbia Circuit explained:

By its terms, the [Statute] extends the scope of this duty to bargain to include all "conditions of employment" -- i.e., to all personnel policies, practices, and matters affecting working conditions. The [Statute] then expressly excludes several conditions of employment from this bargaining obligation, such as matters relating to reserved management rights and to certain prohibited political activities. The statutory framework thus may be envisioned as imposing a broadly defined duty to bargain over conditions of employment that is subject only to the express statutory exceptions.

Library of Congress v. FLRA, 699 F.2d 1280, 1285 (D.C. Cir. 1983) (emphasis in original; citations omitted) (Library of Congress).

      The express exclusions from the obligation to bargain referred to by the court include matters excepted from the definition of "conditions of employment" in § 7103(a)(14) of the Statute and matters inconsistent with law, including management rights set forth in § 7106(a) of the Statute. These exclusions from the obligation to bargain do not serve to take all aspects of these matters off the bargaining table, however. Instead, as the majority acknowledges, the Authority has from the beginning required agencies to bargain over the impact and implementation of matters that are themselves outside the obligation to bargain. See, e.g, United States Patent & Trademark Office, 31 FLRA 952, 955 (1988) (change required by law in computation of continuation-in-service period subject to impact and implementation bargaining); Norfolk Naval Shipyard, Portsmouth, Va., 6 FLRA 74, 92 (1981) (assignment of work subject to impact and implementation bargaining).

      From the beginning, the Authority also has held that impact and implementation bargaining is not required in all cases. Although the precise contours of the standard to be applied to separate the situations that require bargaining from those that do not changed over time, the Authority settled in 1986 on the de minimis standard, holding that the impact on employee conditions of employment must be more than de minimis to trigger an agency's obligation to bargain over changes involving otherwise excluded topics. Dep't of HHS, SSA, 24 FLRA 403, 407 (1986). The Authority found that application of the de minimis standard would promote meaningful bilateral negotiations, stating that requiring bargaining over every management action, no matter how slight, would not serve that aim. Id. at 406. The Authority also noted, however, that "[t]he limited scope of Federal sector bargaining caused by external laws, rules, and regulations . . . demands that the Authority not impose further limitations unless they are based on clear statutory authority and are buttressed by sound policy considerations." Id. at 406-07.

      Application of the de minimis standard determines where there is sufficient "impact" to justify bargaining over a matter that is otherwise outside the obligation to bargain. That is, the de minimis standard draws the line between those aspects of a subject that are outside the obligation to bargain by law and those that are not. With regard to "substance" bargaining, however, there is no matter outside the obligation to bargain and, as a result, no such line to draw. As a result, the de minimis standard has not ever been applied by the Authority to "a change in conditions of employment that is substantively bargainable." Air Force Logistics Command, Warner Robins Air Logistics Center, Robins Air Force Base, Ga., 53 FLRA 1664, 1669 (1998) (Member Wasserman dissenting); see United States Army Reserve Components Personnel and Admin. Center, St. Louis, Mo., 19 FLRA 290 (1985). [ v59 p657 ]

      The majority's insistence on reversing this long-standing precedent is precisely the sort of "about-face" that "constitute[s] [a] danger signal[] that the Agency may be acting inconsistently with its statutory mandate[,]" New York Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502, 510 (2nd Cir. 1985) (citations and internal quotations omitted), and that requires "a reasoned explanation for its change in views." Dep't of the Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48, 56 (D.C. Cir. 1992). The majority's explanation here is both inconsistent with the Statute and lacking in reason.

      At the heart of the majority's error is its conclusion that "[t]he Statute sets forth the parties' duty to bargain in general terms, without applying any different standards depending on the nature of the change that an agency is making." Majority Opinion at 10. As the court's description of the statutory framework in Library of Congress, supra, demonstrates, this is nonsense. The duty to bargain is subject to significant, specific exclusions, and the statutory standards that apply where a change implicates one of those exclusions do not apply in other situations.

      As an example, in the context of impact and implementation bargaining over the exercise of a management right, a union is not entitled to bargain over a proposal that affects a right under § 7106(a) unless that proposal is encompassed by an exception to that right under § 7106(b). See, e.g., IFPTE, Local 49, 55 FLRA 25, 27 (1998). If a change does not constitute the exercise of a management right, however, and if a proposal does not otherwise implicate rights under § 7106(a), then there is no need to apply § 7106(b). See AFGE, HUD Council of Locals 222, 54 FLRA 171, 177 (1998). Stated differently, a proposal need not constitute either a procedure for the exercise of a management right (under § 7106(b)(2)) or an appropriate arrangement for employees adversely affected by the exercise of a management right (under § 7106(b)(3)) unless management rights are implicated in the first place. The Statute makes crystal clear those matters that are within, and outside, the scope of bargaining, and the majority's new rule attempts to obscure the fact that the Statute itself imposes no restrictions whatsoever on bargaining over decisions that are within that scope. As such, the majority's new rule is without any rationale based on the wording of Statute.

      In addition to its misreading of the Statute, the majority also bases its decision to narrow the scope of collective bargaining on decisions issued under § 11 of Executive Order 11491, decisions of the National Labor Relations Board (NLRB), and certain policy considerations. None of these either renders the change consistent with the Statute or otherwise justifies the change.

      As for the Executive Order, § 11 did not set forth a general obligation to bargain. In fact, it did not require "collective bargaining" at all; § 11 merely required agencies and unions to "meet . . . and confer in good faith with respect to personnel policies and practices and matters affecting working conditions, so far as may be appropriate." Majority Opinion at 12 n.7. As such, the majority's reliance on the principle under the Executive Order that management was not required to deal with unions over matters that "indirectly may affect employees" and was only required to do so if the matters had a "substantial impact" on working conditions is simply wrong. Majority Opinion at 13 (citing Dep't of Defense, Air Nat'l Guard, Tex. Air Nat'l Guard, Camp Mabry, Austin, Tex., 6 A/SLMR 591 (1976)). Such reasoning has no place in construing the Statute, which requires bargaining over all conditions of employment affecting employees. 5 U.S.C. § 7103(a)(12) and (14). Indeed, the legislative history of the Statute makes clear that Congress intended the Authority to abandon the "haste to restrict the scope of bargaining" present under the Executive Order. 124 Cong. Rec. H9638 (statement of Rep. Clay)(daily ed. Sept. 13, 1978); see New York Council, 757 F.2d at 508 (in enacting the Statute, Congress intended to expand the scope of bargaining from that under the Executive Order).

      The majority's reliance on NLRB decisions is misplaced for a different reason. In this regard, practice under the National Labor Relations Act (NLRA) may be relevant to the interpretation of the Statute. However, "the degree of relevance of private sector case law to public sector labor relations will vary greatly depending upon the particular statutory provisions and legal concepts at issue." Library of Congress, 699 F.2d at 1287. As relevant here, "the bargaining status of any given subject is determined" in the public and private sectors "by different statutory provisions and by different policy considerations." Id.

      In this regard, the NLRA does not set forth the precise scope of collective bargaining and "[b]ecause of the absence of a precise statutory definition of the subjects [of bargaining,] the Board very early assumed the role of defining compulsory bargaining subjects." Patrick Hardin & John E. Higgens, Jr., The Developing Labor Law, Ch.13.I.B.3 (4th ed. 2001). The NLRB thus has significant discretion to define the scope of bargaining and may, as a policy matter, refuse to consider certain types of cases in order to efficiently manage its case [ v59 p658 ] load. See Peerless Food Products, Inc., 236 NLRB 161, 162 (1978) (concurring opinion of Member Penello) (noting that requirement of "material, substantial, and significant" change in conditions of employment was necessitated by dramatic increase in backlog of cases awaiting hearing).

      The Statute, on the other hand, does contain a precise statutory definition of the scope of bargaining. See 5 U.S.C. § 7103(a)(12) and (14). As the Authority is required to apply this definition, which is absent in the private sector, the Authority's discretion to determine the scope of bargaining is likewise constrained in a way that is absent in the private sector. Moreover, contrary to the majority, there are explicit indications, in both the wording of the Statute and the legislative history set forth above, that Congress chose to "strike a different course" from both the Executive Order and the NLRA when it enacted the scope of bargaining provisions of the Statute. Majority Opinion at 15. Thus, case law under those two schemes is an insufficient basis for the wholesale change in the scope of bargaining imposed by the majority today.

      Finally, the majority seeks to justify its dramatic about-face on policy arguments used to justify application of the de minimis test in impact and implementation cases. The majority states, in this connection, that the Authority's adjudicative processes should not "be unnecessarily burdened with cases that do not serve to bring meaning and purpose to the Federal labor-relations program" and should "promotes meaningful bilateral negotiations." Majority Opinion at 20-21 (citing HHS, 24 FLRA at 406 (emphasis in original)). What the majority fails to provide is any evidence -- quantitative or otherwise -- that