File 2: Member Pope's Decision
[ v58 p437 ]
Dissenting Opinion of Member Pope:
The Judge determined that the Respondent violated the Statute by failing to bargain over the Charging Party's proposals in Case No. AT-CA-00101 (the first complaint) concerning certain changes in employee parking. The Judge also determined that the Respondent violated the Statute by failing to provide the Charging Party with notice of, and an opportunity to bargain over, other changes in employee parking in Case No. AT-CA-00198 (the second complaint).
In the absence of cogent arguments by the Respondent for reversing the Judge's decision, the majority manufactures arguments for the Respondent. However, neither the Respondent nor the majority has justified overturning the Judge's decision. As such, I dissent.
With respect to the first complaint, the Respondent has never disputed that the changes were substantively negotiable, conceding expressly that they were "fully negotiable." [n1] Exceptions at 6. There also is no dispute that the Charging Party's initial, status quo proposal was timely. Thus, if the Respondent was obligated to bargain over that proposal, then its refusal to do so, and its implementation of the changes, violated the Statute.
The Respondent makes one -- and only one -- argument that it was not obligated to bargain over the status quo proposal: the Respondent claims that the proposal was not a "viable" proposal because it "was an `information request,' not any substantive proposal to bargain." Exceptions at 6, 12. The Judge rejected this argument, and the Authority should too. As even a casual reading of the record makes plain, the Respondent is wrong. [n2] The status quo proposal was not an information request; the status quo proposal was made in a document that also contained an information request. Obviously, there is a difference between the two.
As the Judge found, the parties' agreement does not require proposals to be "viable." [n3] Moreover, the Judge's conclusion that the status quo proposal was negotiable is supported by undisputed, on-point precedent holding that proposals requiring agencies to "maintain the status quo during the bargaining process . . . are negotiable . . . ." Nat'l Weather Serv. Emp. Org., 37 FLRA 392, 396 (1990) (citations omitted) (Nat'l Weather); see also NAGE, Locals R5-136 & R5-150, 55 FLRA 679, 680-81 (1999).
Despite the foregoing, the majority concludes that the Respondent was not obligated to bargain over the status quo proposal. The majority does not base its conclusion on finding that the proposal was not "viable" -- the Respondent's only argument. The majority also does not base its conclusion on a finding that the proposal is not negotiable -- an argument that the Respondent does not make but one that would, if made, at least be relevant.
Instead, the majority concludes that the Respondent had no bargaining obligation because it "maintained the status quo well beyond the contractual period authorizing bargaining." Majority Decision at 8. The majority also finds that although the status quo proposal "contemplate[d] . . . future bargaining," the Charging Party's subsequent proposals were not timely under the parties' agreement, such that "the Respondent had no obligation to maintain the status quo until a non-existent bargaining obligation was concluded." Id.
Putting aside that these arguments were never raised by the Respondent, the majority's formulation garbles the law. [n4] In particular, it confuses bargaining over a proposal to maintain the status quo with delaying making changes in conditions of employment for a period of time. By so doing, the majority permits the Respondent unilaterally to substitute delay for bargaining. The Charging Party made a negotiable proposal that triggered the Respondent's obligation to bargain. According to the majority, the Respondent satisfied its [ v58 p438 ] obligation to bargain even though it engaged in "no actual bargaining," id., because the Respondent did not make changes until after additional proposals were made. This reasoning, if it constitutes reasoning at all, is fanciful.
It is not surprising that the majority cites no precedent for its odd finding that the obligation to bargain over a negotiable proposal offered at one point in time is dependent on whether there is an obligation to bargain over proposals offered at a subsequent point in time. But more to the point, the majority's finding that the subsequent proposals were untimely -- mysteriously rendering lawful both the Respondent's later implementation and its earlier refusal to bargain -- is meritless. In this regard, the majority interprets the parties' agreement as requiring the Union to submit all of its bargaining proposals within 15 days after notice of a proposed change. This is absurd; the agreement states no such thing. The agreement states only that the Union has 15 days to "request bargaining and to forward written proposals . . . ." Judge's Decision at 2 (quoting Article 11, § 2B.). Nothing dictates that the Union's initial proposals may be its only proposals. [n5] The Judge's finding that the Charging Party complied with Article 11 "by submitting a request to bargain and a written proposal[,]" id. at 8, within the 15-day period not only is reasonable, it is the only reasonable construction of this provision.
Accordingly, I would adopt the Judge's conclusion that the Respondent violated the Statute in connection with the first complaint. [n6]
With respect to the second complaint, the majority flouts the record by finding that the change in employee parking resulted from an exercise of the Respondent's rights under § 7106(b)(1) and, as a result, was not substantively negotiable. The Respondent expressly concedes with regard to both complaints "that parking is `fully negotiable,'" arguing only that the second complaint should be dismissed for "`mission necessity' reasons" because the change involved patient parking. Exceptions at 18.
The majority asserts that the Respondent's unambiguous concession regarding the negotiability of the change refers only to employee parking and finds that, as to patient parking, the Respondent's "mission necessity" argument raises a § 7106(b)(1) claim. Majority Decision at 9-10. This is sleight-of-hand. At no time has the Respondent ever claimed that its decision to permit patients to park in the employee lot was an exercise of its rights under § 7106(b)(1). [n7] By engaging in this farfetched construction of the Respondent's argument, the majority violates basic principles of appellate review, and again denies the General Counsel its right to respond. [n8]
Moreover, even if the majority's (farfetched, in my view) construction of the Respondent's argument as raising a § 7106(b)(1) claim were correct, then the Respondent was obligated to bargain over the impact and implementation of its decision. [n9] Further, while there is no obligation to bargain over the impact and implementation of a change that has only a de minimis effect on conditions of employment, see Air Force [ v58 p439 ] Logistics Command, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 53 FLRA 1664, 1668 (1998), the Respondent makes no claim that the change in employee parking was de minimis. [n10]
While deciding the case based on issues that were not raised by the Respondent, the majority completely ignores an issue that was actually raised by the Respondent: whether there was a past practice of permitting patients to park in the employee lot. [n11] A condition of employment may be established by past practice when the practice has been consistently exercised over a significant period of time and followed by both parties, or it has been followed by one party and not challenged by the other. See United States DOJ, Exec. Office for Immigration Review, Board of Immigration Appeals, 55 FLRA 454, 456 (1999) (citing United States Dep't of Agric., Forest Serv., Pac. N.W. Region, Portland, Or., 48 FLRA 857, 860 (1993)). According to the Judge, the Respondent did not demonstrate that the practice of permitting patients to park in the employee lot was continuous for a significant period of time or that the Charging Party was aware of, and acquiesced in, the practice. I believe that the record supports the Judge's conclusions. Therefore, I would deny the Respondent's exception.
Based on the foregoing, I would find, as to both complaints, that the Respondent violated the Statute by failing to bargain over the substance of the changes in employee parking. Because the Respondent does not except to the Judge's recommended remedy, I would adopt it.
Accordingly, I dissent.
Footnote # 1 for 58 FLRA No. 104 - Member Pope's Opinion
As such, the majority's finding that the Respondent's "decision to effect the changes [in parking] constituted an exercise of management's right under § 7106(b)(1) of the Statute[,]" Majority Decision at 9 n.4, is inconsistent with Respondent's own arguments.
Footnote # 2 for 58 FLRA No. 104 - Member Pope's Opinion
1. The Union is in receipt of your memorandum . . . concerning proposed changes in parking . . . .
2. The Union hereby requests to negotiate the proposed parking lot changes . . . .
3. The Union will submit its proposals upon review when the information requested (attached) is provided.
4. The Union proposes at this time that all conditions of employment remain status quo.
5. Should you have any questions, contact the undersigned . . . .
Jt. Exh. 5.
Footnote # 3 for 58 FLRA No. 104 - Member Pope's Opinion
Article 11, § 2B. provides that the Charging Party "shall have fifteen (15) calendar days from the date of notification [of proposed changes] to request bargaining and to forward written proposals . . . ." Judge's Decision at 2-3.
Footnote # 4 for 58 FLRA No. 104 - Member Pope's Opinion
Footnote # 5 for 58 FLRA No. 104 - Member Pope's Opinion
It is worth noting that the Respondent makes absolutely no claim that the parties' agreement precluded the Charging Party from offering additional proposals outside the 15-day time period provided the Charging Party had offered a proposal during that time period. The Respondent argues only that the subsequent proposals were untimely because, in its view, the initial status quo proposal was not a "viable" proposal. Exceptions at 6, 12. That is, the Respondent claims that the subsequent proposals were untimely because, in the Respondent's view, the subsequent proposals were the only proposals made by the Charging Party. Because the Respondent's premise is wrong, the Respondent's argument regarding the subsequent proposals evaporates. The majority either misses or ignores this logical connection between the Respondent's two arguments and, as a result, complicates a simple dispute.
Footnote # 6 for 58 FLRA No. 104 - Member Pope's Opinion
The Respondent's arguments regarding this complaint are as meritless as the majority's. In addition to its claim that the status quo proposal was not a proposal, the Respondent argues that the first complaint should be dismissed under § 7117(d)(2)(A) of the Statute because the changes encompassed by it were de minimis. However, as § 7117(d)(2)(A) applies only to consultation, not bargaining, rights, it provides no basis to reverse precedent holding that the de minimis doctrine does not apply in cases, such as this one, where substance bargaining is required. See 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995).
Footnote # 7 for 58 FLRA No. 104 - Member Pope's Opinion
Footnote # 8 for 58 FLRA No. 104 - Member Pope's Opinion
The answer to the Respondent's argument -- that the Authority should consider mission necessity in determining an agency's obligation to bargain -- is straightforward. Under longstanding Authority precedent, an agency may implement a change in conditions of employment without completing bargaining where the change is "necessary for the functioning of the agency." See United States DOJ, INS, 55 FLRA 892, 904 (1999). However, the Authority has excused such unilateral implementation when an agency has given notice of, and an opportunity to bargain over, the change. See id. As the Respondent provided neither in connection with the change encompassed by the second complaint, the mission necessity defense does not apply.
Footnote # 9 for 58 FLRA No. 104 - Member Pope's Opinion
As stated previously, I believe that, consistent with the Respondent's concessions, the Respondent was obligated to bargain over the substance -- not only the impact and implementation -- of the change.
Footnote # 10 for 58 FLRA No. 104 - Member Pope's Opinion
Although the Respondent raised the de minimis issue as to this complaint in its post-hearing brief to the Judge, the Respondent does not renew this argument in its exceptions to the Authority. The majority's determination to both advocate for, and decide this case in favor of, the Respondent renders irrelevant the Respondent's arguments. Unfortunately, it also renders irrelevant basic principles of due process and neutrality.
Footnote # 11 for 58 FLRA No. 104 - Member Pope's Opinion