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Opinion of Member Cabaniss, dissenting in part:
I dissent from the conclusion that the negotiability appeal process cannot be used to resolve alleged conflicts between section 7116 and either bargaining proposals or contract provisions disapproved pursuant to agency head review under section 7114(c) of the Statute. However, in doing so I would still find that the provision in question is not contrary to law, to include section 7116.
While the majority correctly asserts that the Authority has never found that a proposal or a provision constitutes an unfair labor practice, that statement actually reflects that the Authority has never sustained any of the numerous agency allegations of conflict between a proposal or provision and section 7116, and not that the Authority refused to entertain the issue. To the contrary, the Authority has never before refused to address an allegation of alleged inconsistency between a proposal or provision and section 7116 of our Statute when necessary to resolve the issue before it. [n1] For that matter, even the Union in this case saw no difficulty with the Authority resolving this issue and posed no objection to our doing so.
Section 7105(a)(2)(E) empowers the Authority to resolve questions relating to the duty to bargain in good faith under section 7117(c) of the Statute. Section 7117(c) relates back inextricably to section 7117(a), which limits the duty to bargain in good faith to the extent not inconsistent with "Federal law." Authority precedent in negotiability cases clearly reflects that section 7116 falls within the kind of "Federal law" against which a proposal/provision can be assessed: the majority decision even acknowledges the ability to assess contract language against section 7114(a)(1) (a union's duty of fair representation, the violation of which would constitute an unfair labor practice under section 7116(b) of the Statute) and section 7116(a)(7) (the violation of which also would constitute an unfair labor practice). I fail to perceive a relevant distinction being drawn by the majority between our case law permitting us to resolve alleged inconsistencies between proposals or provisions and sections 7114(a)(1) and 7116(a)(7), and alleged inconsistencies with the rest of sections 7116(a) and (b). I believe the alleged concern over infringement on the General Counsel's responsibilities misses the mark. The question presented here is not whether the Agency has committed an unfair labor practice, but whether its disapproval of certain contract provisions is correct because those provisions are inconsistent with Federal law. Those are two different issues.
It might be argued that an inconsistency with section 7116(a) or (b) could not be resolved in a negotiability appeal because there must be some action flowing from the contractual language before an inconsistency with section 7116 could be assessed (in effect, that an unfair labor practice event must be presented), while a negotiability appeal examines only the propriety of language in the abstract, without any action flowing therefrom. I am not persuaded by such an argument. A contract provision is a legally enforceable promise to act or not act in some certain fashion; a contract proposal is the potential promise to be so bound. As with certain contract law situations, I should think it possible to declare certain provisions void ab initio even before any action is taken in accordance with the offending provision.
Even the National Labor Relations Board recognizes the ability to find an inconsistency with its organic statute solely by virtue of the language contained in a contract provision. NLRB case law recognizes that certain types of contract provisions are "facially invalid," which would seem to indicate that the provision, by virtue of its very terms, is improper. See, e.g., Teamsters Union Local No. 668, 326 NLRB 260 (1998); Rochester Manufacturing Co., 323 NLRB No. 36 (1997); and Paramax Systems Corporation, 311 NLRB 1031 (1993). The NLRB has even granted summary judgment in such "facially invalid" cases. See Local No. 6- [ v55 p1013 ] 18, Oil, Chemical and Atomic Workers International Union, 290 NLRB 1155 (1988).
Finally, it is worth noting that Congress, by establishing a negotiability appeal process unlike anything in the private sector, expressly provided Federal unions with an alternative to the unfair labor practice litigation that private sector unions use to enforce their employers' obligation to bargain in good faith. I believe it would frustrate that congressional intent to preclude a union's recourse to the negotiability appeal process in order to resolve issues pertaining to the duty bargain in good faith where the only dispute between the parties concerns possible inconsistencies between proposals or provisions and section 7116. In emphasizing this point I do not intend to suggest that unfair labor practice remedies should be available in negotiability proceedings.
Accordingly, and consistent with private sector precedent, I see no reason why the Authority should not address in the negotiability process under section 7117(c), and resolve where necessary, assertions that contract proposals or disapproved contract provisions conflict with any part of section 7116(a) or (b). For that reason, I would address the Agency's argument in this case as to the alleged conflict with section 7116. However, as noted earlier, having done so I would still find that the provision does not conflict with section 7116. See, e.g., Radio and Television Broadcast Engineers Union, Local 1212, I.B.E.W., AFL-CIO and WPIX, Inc., 288 NLRB 374 (1988), petition for review denied, WPIX, Inc. v. NLRB, 870 F.2d 858 (2nd Cir. 1989).
File 1: Authority's Decision in 55 FLRA No. 164
File 2: Opinion of Member Cabaniss
Footnote # 1 for 55 FLRA No. 164 - Opinion of Member Cabaniss
In National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 615, 623-24 (1990), the Authority did not address an alleged conflict with section 7116(a)(2) because it had already found the provision conflicted with section 7114(a)(1), and thus was nonnegotiable. In Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 816 (1991), the Authority did not address an alleged conflict with sections 7116(a)(2) and (b)(2) because it had already found the provisions in question conflicted with section 7106(a), and thus were nonnegotiable. For examples of cases in which the Authority substantively addressed an alleged conflict between a proposal/provision and section 7116, see, e.g., American Federation of Government Employees, AFL-CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3, 7 and 25-26 (1987) (alleged conflicts with sections 7116(a)(1), (5), (7) and (8), and sections 7116(b)(5) and (8)); and National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 14 FLRA 243, 244-45 (1984) (alleged conflict with section 7116(a)(7)).