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File 2: Opinion of Member Pope

[ v60 p853 ]

Dissenting Opinion of Member Carol Waller Pope:

      The issue before the Authority is whether the Judge correctly found that the Respondent unlawfully repudiated two MOUs addressing work on Saturdays. For the reasons that follow, the Judge clearly was correct. In reaching a contrary conclusion, the majority applies an incorrect legal standard, misconstrues the contract terms at issue, and relies on argument the Respondent never made. Therefore, I dissent.

      As for the appropriate legal standard, the majority fails to apply clear precedent requiring the Authority to resolve a contractual defense to an alleged unfair labor practice (ULP) by determining the meaning of the contractual provision relied on. It is undisputed, in this regard, that where, as here, a respondent defends its actions by relying on a contractual provision, the Authority ascertains the actual meaning of the contract provision using the standards and principles of interpreting agreements applied by arbitrators and the federal courts. See IRS, Wash., D.C., 47 FLRA 1091, 1111 (1993) (IRS). See also, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Florence, Colo., 59 FLRA 165, 171-72 (2003).

      The Respondent claims that, under Article 44, § 1 B (hereinafter Article 44), it was permitted to terminate the MOUs based on rescission of Executive Order 12871. See Exceptions at 17. [n1] Article 44 provides, in the first two sentences, that the Respondent: (1) agrees to bargain over matters under § 7106(b)(1) of the Statute in accordance with Executive Order 12871, and (2) will not use § 7106(a) of the Statute to circumvent this contractual obligation to bargain. The third and fourth sentences provide:

In the event Executive Order 12871 is rescinded and the Department chooses not to bargain 5 U.S.C. Section 7106(b), either party may reopen this Article to address the 7106(b) issues. However, agreements reached during the effective term of this Master Agreement will remain in effect unless changes are negotiated.

Joint Ex. 9 at 171.

      The Judge interpreted Article 44 to mean that agreements reaching during the term of the master agreement, including the two MOUs in this case, remain in effect during the term of the agreement unless the parties negotiate changes to the MOUs. See Judge's Decision at 16-17. According to the Judge, "[t]he Union was under no obligation to negotiate changes in the MOU[s] because those agreements remained in effect" during the term of the agreement. Id. at 17. Applying IRS, it is indisputable, in my view, that the Judge's interpretation is supported. I note, in this regard, that neither the GC nor the Respondent offered evidence regarding the interpretation of Article 44, such as bargaining history. Thus, the provision must be interpreted pursuant to its plain wording.

      Examining the plain wording, two things are evident. First, Article 44 and the agreements reached under Article 44 are dealt with quite differently. In particular, the parties agreed to a unilateral right to act only with respect to reopening Article 44 -- "either party" may reopen Article 44 upon rescission of Executive Order 12871. The parties did not agree on similar wording in connection with agreements negotiated under Article 44 -- the latter agreements remain in effect "unless negotiated." Second, the sentence addressing agreements negotiated under Article 44 is an express exception to the sentence addressing Article 44 itself. In this regard, the sentence addressing agreements negotiated under Article 44 begins with "[h]owever," an unambiguous signal that it sets forth a different rule from the one preceding it.

      Reading the two sentences with any care whatsoever shows that: (1) the first permits either party to unilaterally reopen Article 44 for the purpose of addressing prospective issues arising from rescission of Executive Order 12871 and a decision by the Respondent to no longer bargain over § 7106(b)(1) matters; and (2) the second indicates that such reopening does not affect agreements over § 7106(b)(1) matters that were reached under Article 44. As applied here, the Respondent was permitted unilaterally to reopen Article 44 but was not permitted unilaterally to terminate the MOUs, which the Judge found (and the majority and I agree) had been bargained under § 7106(b)(1). As such, Article 44 does not provide a defense to the Respondent's clear and patent breach of the MOUs.

      In reaching a contrary conclusion, the majority ignores both the difference in wording between the two sentences (one vesting rights in "either party," the other not) and the fact that the second sentence is an express exception to the first. As such, the majority's interpretation flaunts the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts and, by extension, the Authority's [ v60 p854 ] established framework set forth in IRS. See, e.g., Elkouri & Elkouri, How Arbitration Works 493 (Marlin M. Volz & Edward P. Goggin eds., 5th ed. 1997) (general rule is to interpret agreement to give meaning to all of its parts).

      The majority also ignores that IRS requires it to determine the meaning of Article 44. Indeed, the majority permits the Respondent to defend its actions on the basis of Article 44 without ever determining what Article 44 means. The majority concludes, in this regard, that the Respondent's interpretation of Article 44 as permitting it to reopen and terminate the MOUs is "reasonabl[e]." Majority Opinion at 16. However, the majority expressly finds that Article 44 is not clear on this point and refuses to determine whether the Respondent was in fact correct. See id. Thus, the majority excuses an alleged unfair labor practice on the basis of a contract provision it refuses to interpret.

      Moreover, by applying a "reasonableness" standard to Article 44, the majority hopelessly confuses the standard for resolving a defense to a particular -- repudiation -- ULP with the standard for resolving general contractual defenses to all alleged ULPs. In so doing, the majority ignores that, while both defenses involve contract provisions, they operate in fundamentally different ways. In particular, when resolving a complaint alleging repudiation, the Authority determines, as relevant here, whether the respondent committed a clear and patent breach of the provision. See Dep't of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Ill., 51 FLRA 858, 862 (1996) (Scott AFB). In making that determination, the Authority finds no clear and patent breach where the respondent establishes the defense that it acted in accordance with a reasonable interpretation of the provision. See id. In resolving a general contractual defense, however, the Authority determines the actual meaning of the provision relied on; whether a particular interpretation is reasonable is not determinative. See IRS, 47 FLRA at 1103 (in adopting IRS analysis, Authority "reaffirm[ed its] rejection of the `differing and arguable interpretations' analysis[]"). Cf. Nat'l Naval Med. Ctr., 54 FLRA 1078, 1094-95 (1998) ("reasonableness" test for assessing compliance with arbitration award is not "analogous" to IRS analysis).

      Here, the majority finds that the Respondent did not commit a clear and patent breach of the MOUs. See Majority Opinion at 16. However, the majority does not base this on a finding that the Respondent had a reasonable interpretation of the MOUs. Instead, the majority concludes that the Respondent did not commit a clear and patent breach of the MOUs because it had a reasonable interpretation of a different provision: Article 44 of the parties' agreement. See id. In so doing, the majority applies the repudiation standard to Article 44 even though the Respondent was never charged with repudiating Article 44; the complaint alleges -- only -- that the Respondent repudiated the two MOUs. See GC Ex. 1(c), ¶¶ 14-18. It also does so despite the fact that, as set forth above, it expressly finds that Article 44 is not clear on the relevant point and refuses to interpret the provision.

      The majority also incorrectly holds that the MOUs are not enforceable because they are inconsistent with 5 C.F.R. § 610.121(a), which permits the adjustment of work schedules where the head of the agency determines that its functions would be "seriously handicapped" or its "costs would be substantially increased." The Respondent makes no such argument, however. In fact, the Respondent makes a different argument: it asserts that 5 C.F.R. § 610.121(b), which requires the scheduling of workweeks to correspond to the actual work requirements, grants it "the right to change the workweek of employees unilaterally[.]" Exceptions at 12. The Respondent's argument is easily resolved under Authority precedent. Where an agency enters into an agreement concerning employees tours of duty under § 7106(b)(1) of the Statute, as both the Judge and majority agree the Respondent did here, then that agreement corresponds to employee work requirements and is not inconsistent with 5 C.F.R. § 610.121(b). NAGE, Local R5-184, 51 FLRA 386, 398-99 (1995).

      As for the issue the majority raises sua sponte --and not surprisingly finds persuasive -- neither the Charging Party nor the General Counsel had any opportunity to address whether the MOUs are consistent with 5 C.F.R. § 610.121(a). Thus, the argument is not properly before the Authority. [n2] I would not raise this issue, and I would deny the exception actually made by the Respondent. I also would deny the Respondent's remaining exceptions. Accordingly, I would conclude that the Respondent violated the Statute by repudiating the MOUs. I would also adopt the remedy directed by the Judge as consistent with the policy that remedies in ULP cases should restore, as far as possible, the status quo that would have obtained if the violation had not occurred. See United States Dep't of Justice, Fed. Bureau of Prisons, FCI Danbury, Danbury, Conn., 55 FLRA 201, 205 (1999) (Member Wasserman concurring in part and dissenting in part).

      For the foregoing reasons, I dissent.

File 1: Authority's Decision in 60 FLRA No. 159
File 2: Opinion of Member Pope
File 3: ALJ's Decision

Footnote # 1 for 60 FLRA No. 159 - Opinion of Member Pope

   In fact, the Respondent claims -- as an alternative to its arguments that the MOUs did not result from bargaining over § 7106(b)(1) matters and were terminable at will -- only that a "reasonable interpretation of Article 44 . . . is that the rescission of Executive Order 12871 allowed either party in this case to propose changes to § 7106(b) issues that were negotiated prior to the rescission date." Exceptions at 17 (emphasis added). Of course, parties are always free to propose changes. That is not the issue in this case, however. The issue here is whether, after a change is proposed and refused by the other party, it may be implemented unilaterally.

Footnote # 2 for 60 FLRA No. 159 - Opinion of Member Pope

   I note that, although the GC claims that the Respondent has not to date demonstrated a right to change work schedules under § 610.121(a), the GC does not dispute the Respondent's right to do so in the future. See Opposition at 9-10.