File 2: Opinion of Chairman Cabaniss

[ v60 p489 ]

Concurring opinion of Chairman Cabaniss:

      I write separately to explain why I would find that the governing condition of employment in this case is a collective bargaining agreement rather than an agency regulation, and why the subject matter at issue here is thus "covered by" a collective bargaining agreement.

      Section 7103(a)(8) of our Statute defines a "collective bargaining agreement" as "an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter[.]" There is nothing in this agreement or our precedent that limits this definition to collective bargaining agreements having a set term/duration, and the Authority has found that the "covered by" doctrine applies to expired collective bargaining agreements, which by definition have no fixed term/duration. United States Border Patrol, Livermore Sector, Dublin, Cal., 58 FLRA 231, 233 (2002). There also is nothing to distinguish this case based on the fact that the matter at issue involved the content of an agency regulation, as nothing precludes negotiations over the content of an agency regulation from being considered as a collective bargaining agreement. In that regard, § 7117(a)(2) recognizes that the content of agency rules or regulations are fully negotiable to the extent there is no "compelling need" for that regulation (a concept not applicable here). There is also nothing that mandates a finding that the concept of being "entered into" requires the mutual consent of the parties.

      Section 7103(a)(12) of our Statute defines "collective bargaining" as the mutual obligation to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement upon bargaining unit conditions of employment. That definition does not require that mutual agreement upon the terms of a collective bargaining agreement must be reached, to the contrary, the definition explicitly recognizes that "the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession[.]" As also noted by the definition, there is no requirement that there be a signed document as part of this process.

      The record in this case indicates that the Agency in Customs Service submitted its proposed assignment policies to the collective bargaining process under the Statute, as it was required to do. See, e.g., Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990). I find no basis for distinguishing the facts of this case so as to preclude a finding that the Agency fulfilled its obligation to engage in "collective bargaining" as defined by our Statute: I also would find no basis for not concluding that this agency regulation on assignment policies is "an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter[,]" i.e., that this is a collective bargaining agreement.

The Authority also has recognized that a union may consent to a proposed change in conditions of employment, either explicitly through agreement or implicitly through action or inaction. Thus, an agency may implement changes in conditions of employment when a union fails to request bargaining within a reasonable period of time after being notified of proposed changes, fails to bargain, or fails to timely invoke the services of the Panel[,] after the parties have reached impasse. See, e.g., [United States INS I, 24 FLRA 786, 790 (1986)]. In these situations, the agency has, in effect, satisfied its bargaining obligation. (Footnote omitted).

United States Immigration and Naturalization Service, Washington, D.C., 55 FLRA 69, 73 (1999) (INS) (emphasis in the original). The majority opinion notes that conditions of employment, created when a party fails to invoke the services of the Federal Service Impasses Panel, become part of the parties' collective bargaining agreement. United States Dep't of Labor, 60 FLRA 68 (2004). I fail to see the distinction between that situation (where the condition of employment was considered a part of a collective bargaining agreement) and the present circumstance (where the majority does not find a collective bargaining agreement). Based upon the above, as the Agency here has satisfied its collective bargaining obligation under the Statute, I find no basis for not concluding that there is a collective bargaining agreement establishing bargaining unit assignment policies. And again, the fact that there is no apparent term (agreed upon length of time) to this collective bargaining agreement is immaterial, as there is no such requirement in our Statute or our precedent mandating such in order to become a collective bargaining agreement.

      I thus would find that the issue of assignment policies is "covered by" this agreement, as I note no substantive rationale that would justify treating this agreement differently than any other agreement which has been reached through the collective bargaining process. As noted by the Authority in the INS decision, in each instance discussed an agency fulfills its bargaining obligation under the Statute, and any attempts to parse a distinction based upon the extent to which a union has agreed to the agreement is at odds with that decision and has no justifiable basis. Therefore