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File 2: Opinion of Member Pope

[ v60 p838 ]

Opinion of Member Carol Waller Pope, concurring in part and dissenting in part:

      Below, the majority held that the entire six-section proposal was nonnegotiable based on paragraph 5, which, according to the majority, impermissibly affected the Agency's right to assign work. The majority acknowledged the parties' agreement that paragraph 6 of the proposal was bargainable at the Agency's election under § 7106(b)(1) of the Statute but held that "[n]othing in Authority precedent suggests that this fact" affected the conclusion that the proposal as a whole was nonnegotiable. ACT II, 60 FLRA at 347 n.8. I disagreed with the majority's finding that paragraph 5 was outside the duty to bargain and its refusal to apply the "dominant requirement" test to assess the relationship between paragraph 6 and the rest of the proposal. Id. at 351. I stated I would find that paragraphs 1 through 5 are negotiable, that paragraph 6 is not the dominant requirement, and that, as a result, the entire proposal is within the duty to bargain.

      The Union requests reconsideration, arguing that paragraph 5 is within the duty to bargain (along with paragraphs 1 through 4) and that paragraph 6 does not affect the negotiability of the proposal because it is not the dominant requirement. See Motion at 2. The majority denies reconsideration on the grounds that: (1) the Union's argument regarding paragraph 5 is an attempt to relitigate the decision below; and (2) the Union's argument regarding the "dominant requirement" test has been raised for the first time on reconsideration and, as such, the Authority did not err in refusing to apply the test. Majority Opinion at 4-6.

      I agree with the majority that the Union's attempt to relitigate the majority's conclusion that paragraph 5 is outside the duty to bargain does not establish extraordinary circumstances. Thus, despite my dissenting opinion in ACT II, I agree that reconsideration is not warranted on that ground.

      I part company with the majority in its treatment of the Union's dominant requirement argument, however. For the reasons that follow, I believe the majority commits serious legal error in rejecting the Union's argument and I dissent on this point.

      There is no question -- and the majority concedes -- that in ACT, the majority did not address or apply the "dominant requirement" test. See Majority Opinion at 5. This was legal error. Now, in refusing to recognize its error, the majority holds that it was not required to apply the "dominant requirement" test because the [ v60 p839 ] Union did not argue it. See Majority Opinion at 4-5. This is also legal error.

      The "dominant requirement" test is not an argument that must be made by a party. Rather, the "dominant requirement" test is Authority doctrine that applies automatically in circumstances where, as here, a proposal has two or more inseparable requirements, one party argues that its negotiability is governed by § 7106(a), and another party argues that its negotiability is governed by § 7106(b)(1). See, e.g., Int'l Fed'n of Prof'l & Technical Eng'rs, Local 49, 52 FLRA 813, 820 (1996) (IFPTE) (Member Armendariz concurring as to result). It is akin to other Authority doctrines, including the HUD Council of Locals analysis, which also applies automatically in certain negotiability cases and which was applied by the majority in ACT II, 60 FLRA at 346, despite the Agency's failure to request its application[*] See Statement of Position at 8-12.

      By holding that the test does not apply unless it is argued, the majority also acts directly inconsistent with precedent. It is beyond dispute, in this regard, that the Authority applies the "dominant requirement" test whether or not a party requests its application. See, e.g., NFFE, Local 2148, 53 FLRA 427, 433-37 (1997); Int'l Fed'n of Prof'l & Technical Eng'rs, Local 49, 52 FLRA 839, 840-43 (1996) (Member Armendariz concurring as to result); IFPTE, 52 FLRA at 820-21. The majority refuses to even acknowledge this precedent.

      For the foregoing reasons, I cannot join the majority's denial of the request for reconsideration.

File 1: Authority's Decision in 60 FLRA No. 157 Authority's Decision
File 2: Opinion of Member Pope

Footnote * for 60 FLRA No. 157 - Opinion of Member Pope

   The majority's holding that the "dominant requirement" test does not apply unless it is argued by a party raises the question what other doctrines will be ignored unless they are argued. Will the majority refuse in the future to apply the BEP doctrine in arbitration cases if it is not cited by a party? How about the Antilles doctrine in cases involving conditions of employment or the IRS particularized need doctrine in data cases?