File 2: Opinion of Member Pope
[ v61 p180 ]
Member Carol Waller Pope, dissenting:
The majority creates the impression that setting aside the award is consistent with, and perhaps even required by, extensive precedent. Nothing could be further from the truth. In fact, the only precedent addressing the dispositive issue in this case -- whether the parties' agreement that an employee in one unit may use official time to represent an employee in another unit is enforceable -- supports a conclusion that the provision is enforceable and, as a result, the award is not deficient. Accordingly, I dissent.
The majority is right about one thing. There is extensive precedent addressing application of § 7131(a) and (d) of the Statute. In particular, the majority cites numerous decisions addressing whether employees are entitled to official time to negotiate agreements under § 7131(a) or entitled to negotiate official time for other representational matters under § 7131(d). [*] In both circumstances, the entitlements -- to official time or to negotiate official time -- apply only to unit employees using official time to represent employees in their units. See AFGE, Local 1698, 17 FLRA 557, 558-59 (1985).
What the majority disregards, however, is that the award is not about statutory entitlements. In this regard, the Union is not claiming, and the Arbitrator did not find, that the Union was entitled to bargain over official time for an employee from one unit to represent an employee in another unit. Instead, the Arbitrator found -- only -- that the parties' agreement to provide such official time was enforceable. See Award at 9-12. As a result, the proper question is not whether the Agency was required to negotiate in the first place but, rather, is whether, having done so, the Agency must abide by its agreement.
There are only two decisions addressing the proper question before the Authority. See AFGE, Nat'l INS Council, 45 FLRA 391, 399-401 (1992) (INS), enforced in pertinent part sub nom. United States INS v. FLRA, 4 F.3d 268 (4th Cir. 1993) (INS v. FLRA); AFGE, Nat'l Council of Field Labor Locals, 39 FLRA 546, 552-54 (1991) (Field Labor Locals). Both decisions hold that negotiations over official time for matters outside the entitlement (to negotiate) in § 7131(d) are permissive. See INS, 45 FLRA at 399-400; Field Labor Locals, 39 FLRA at 553-54. The law is clear that although parties are not required to bargain over permissive subjects, if they reach agreement, then the agreement is fully enforceable in arbitration. See, e.g., United States Dep't of Transp., FAA, 60 FLRA 159, 162 (2004) (§ 7106(b)(1) matters) (Chairman Cabaniss concurring); United States Dep't of the Treasury, IRS, 59 FLRA 34, 36 (2003) (matters concerning working conditions of supervisors and managers). Therefore, the parties in this case were permitted to bargain over official time for an employee in one unit to represent employees in another unit; as a result, their agreement is enforceable and the award is not contrary to law.
The majority finds that Field Labor Locals is "not relevant" because its holding -- that § 7131(d) does not preclude parties from agreeing to provide official time for matters other than the labor-management relations activities for which the entitlement to negotiate applies -- did not address "who" could receive official time. Majority Opinion at 4 n.5 (emphasis in original). That Field Labor Locals does not address "who" may receive official time is true enough. The majority makes no attempt, however, to explain why this fact matters. Put differently, the majority does not address why the principle of Field Labor Locals -- that § 7131(d) does not prohibit bargaining over matters beyond those required under that section -- does not apply equally here as there. Moreover, the majority completely ignores INS, as well as the import of the decision of the U.S. Court of Appeals for the Fourth Circuit reviewing INS. There, the court specifically rejected the argument that § 7131(d) specifies the "only two situations [in] which an agency and union may agree to provide for official time," and agreed with the Authority that § 7131(d) "is not exclusive." INS v. FLRA, 4 F.3d at 272 & n.6. As the majority is silent on why previous decisions concerning "what" official time is used for under § 7131(d) are not relevant to determining "who" may receive that official time, the majority opinion is arbitrary and capricious on its face. See NTEU v. FLRA, 404 F.3d 454, 457-58 (D.C. Cir. 2005) (court found that Authority majority's "failure to follow its own well-established precedent without explanation is the very essence of arbitrariness.").
For the foregoing reasons, I dissent.
File 1: Authority's Decision in 61 FLRA No. 35
File 2: Opinion of Member Pope