File 2: Opinion of Member Cabaniss

[ v56 p56 ]

Opinion of Member Cabaniss, concurring in part and dissenting in part:

      I agree that a union proposal requiring an agency to bargain midterm "on any negotiable matters not covered by the provisions of [the parties' collective bargaining agreement]" is not inconsistent with our Statute or any other law, rule, regulation. Accordingly, it was an unfair labor practice for the Respondent in this case to refuse to bargain over such a proposal. However, I do not agree with the analysis relied on by the majority to conclude that union midterm bargaining, even in the absence of a contractual entitlement to do so, is a matter of statutory right.

      I also disagree with the decision by the majority to not seek input from the general public and the parties here regarding the issue of "zipper clauses," a matter too intertwined with midterm bargaining to ignore. Rather than take this opportunity provided by the Supreme Court to fully determine the "whether, when, where, and what sort of midterm bargaining is required" in the Federal government, the majority consciously chooses not to address possibly the most crucial aspect of midterm bargaining by refusing to even seek information regarding zipper clauses and their effect, if any, on union midterm bargaining. As a result, we subject federal agencies and their unions to a guessing game about a crucial aspect of this new bargaining process. Accordingly, I respectfully dissent from the majority's resolution of the statutory duty to bargain issue and would not, without first obtaining more data, determine the question of whether the Statute requires bargaining on all negotiable union midterm bargaining proposals not covered by the parties' agreement, even in the absence of a contractual entitlement to do so.

      I know of few reasons, given the Supreme Court's finding that our Statute does not squarely prohibit union midterm bargaining, why a union should be precluded from being able to at least negotiate a contractual right to bargain midterm. However, crediting fear of an unknown future as a factor in support of such a conclusion seems not all that significant or relevant a rationale. With the rare exception of circumstances like transit subsidies, i.e., where Congress affords federal agencies the discretion to provide a benefit to employees rather than directly providing that benefit (such as in passing the Family Friendly Medical Leave Act), there will be very few, if any, "new" bargaining opportunities for federal unions during the term of a collective bargaining agreement that will not already be subject to a mandatory bargaining obligation under 5 U.S.C. § 7106(b). Additionally, given the negotiability of midterm reopener bargaining provisions, it would be quite easy for the parties to fashion a midterm negotiations entitlement to address those limited circumstances of new, unforeseen matters not otherwise falling within the bargaining mandate of 5 U.S.C. § 7106(b).

      I also have some reservations about the value of considering what is apparently perceived as a lack of "focused negotiations" in today's collective bargaining environment. As already noted, there are relatively few if any surprises for unions and agencies that will not already fall within the coverage of negotiations under 5 U.S.C. § 7106(b). Additionally, a large number of conditions of employment are driven by Congressional and third party agency action (such as the Office of Personnel Management and the Occupational Safety and Health Administration, to name just two), and such action is subject to public notice and advance lead time. Given these considerations, and the general nature of federal agencies as employers already well known to the exclusive representatives of their employees, I should think that the "focus" needed during term negotiations would not be so ephemeral or in need of revision as to require providing exclusive representatives the opportunity to reconsider their priorities at some later point in the future. For that matter, a change in one's priorities does not, in and of itself, seem like a sufficient rationale to support the conclusions reached by the majority. And again, the parties already have the ability via midterm reopener provisions to address circumstances where new "focus" might be needed.

      Finally, I see little benefit from assessing the raw number of instances that union midterm bargaining has taken place so far in the Federal government. Based upon the submissions received from the parties and those responding to the Federal Register notice in this matter, there appears to be little if any qualitative data, good or bad, regarding the impact such a right has on the overall collective bargaining relationship between the parties operating under such a right. I do not believe the focus of the test for an effective and efficient government is accomplished by taking a snapshot of the Federal government as a single monolith. Rather, I believe the focus must of necessity be on each federal agency, or that part of an agency at which the level of recognition rests, and how midterm bargaining has affected local bargaining relationships, regardless of how often (or not) the issue has arisen.

      A process or procedure that operates to the detriment of the statutory standard under 5 U.S.C. § 7101(b) is at odds with that standard regardless of the number of times that process is exercised by the parties, or regardless of the number of agencies or unions subject to it. In that regard, I see something inherently ineffective and [ v56 p57 ] inefficient about a process that mandates a bargaining obligation whenever one party wishes to negotiate new conditions of employment. [n1] 

      If such a statutory right for unions exists, however, I would find that a counterbalance to it is appropriate, in order to ensure "parity" of the parties at the bargaining table in being able to open the gates to future negotiations, or close them. [n2]  The counterbalance to that right would be its own inherent risk of being won or lost at the bargaining table, to include impasse procedures. However, more analysis is needed, in terms of a qualitative assessment of how midterm bargaining has affected collective bargaining relationships, and whether and to what extent zipper clauses will be a consideration in these negotiations.

      The majority states there is no need to address the matter of zipper clauses and the matter is not necessary to the resolution of the case before it. I note, however, that addressing the issue of an independent statutory right to engage in union midterm bargaining was not necessary to the resolution of the original decision giving rise to this matter (even though the Authority addressed at that time the larger issue of the statutory question rather than limiting itself to just the issue of contractual obligations to bargain), and still is not necessary to