File 2: Opinion of Member Pope

[ v59 p221 ]

Member Carol Waller Pope, dissenting:

      The majority finds that the proposals at issue are permissive, rather than mandatory, subjects of bargaining because they would require the Agency to waive a statutory right. Majority Opinion at 10-11. For the following reasons, I disagree.

      The majority's analysis begins and ends with its conclusion that the "covered by" defense is grounded in the Statute and, since this defense is a "statutory right," it may be voluntarily waived but need not be negotiated. Decision at 9-10. However, in addressing whether particular proposals relating to rights rooted in the Statute are mandatory or permissive subjects of bargaining, the Authority, applying principles enunciated by the Court of Appeals for the District of Columbia Circuit, employs a different test, which examines the nature of the rights at issue and the policy issues implicated by requiring bargaining over a particular subject. See United States Food and Drug Admin., Northeast and Mid-Atlantic Regions, 53 FLRA 1269, 1274 (1998) (FDA), citing AFGE, Locals 225, 1504, and 3723, 712 F.2d 640, 646 (D.C. Cir. 1983) (AFGE). Applying the proper test, I would find that the parties are required to bargain over the proposals.

      In AFGE, the court affirmed the Authority's conclusion that the scope of the negotiated grievance procedure is a mandatory subject of bargaining. Id. The Authority had held that parties must bargain over the scope of the grievance procedure and may insist on a particular proposal to impasse. See Vermont Air National Guard, 9 FLRA 737, 740 (1982). In upholding the Authority's decision, the court reasoned that permissive subjects of bargaining are distinguished from mandatory subjects because they are linked to "unilateral rights specifically vested in one party." AFGE, 712 F.2d at 646. The court noted that "[i]t is sensible to view all matters relating to conditions of employment as mandatory subjects of bargaining unless the Act explicitly or by unambiguous implication vests in a party an unqualified `right'," Id. at 646 n. 27, and that the grievance procedure section of the Statute "is simply not cast in the same mold; it is not designated as a union rights clause and it labels no subject bargainable at a party's election." Id. at 646-47.

      In FDA, the Authority adopted the AFGE court's reasoning that permissive subjects of bargaining are generally linked to rights specifically vested in one party, and held that an Agency's proposal for more than one collective bargaining agreement was a permissive subject of bargaining. 53 FLRA at 1275-76. The Authority reasoned that the Union had a unilateral right to negotiate with "an agency," and that permitting an agency to insist on more than one agreement would allow it to turn itself into more than one entity. Id. at 1276. The Authority stated that "there are certain features of collective bargaining that any party may rely [ v59 p222 ] on" and that "[o]ne such feature is that the basic bargaining relationship is between one union and one employer." Id.

      Applying AFGE and FDA here, the "covered by" doctrine is not linked to any unilateral right in the Statute, either explicit or implicit. [n1]  Rather, as the majority notes, the doctrine is rooted in the general policy goals of promoting the resolution of disputes through bargaining and avoiding endless bargaining on the same subject. Decision at 3, quoting United States Dep't of HHS, SSA, Balt., Md., 47 FLRA 1004, 1017 (1993)(SSA). The doctrine is not based on a unilateral right but on promoting "stability and repose" and "a respite from unwanted change to both parties." Id. The doctrine is linked to mutual interests, not unilateral rights.

      As a matter that relates to the mutual rights and obligations of the parties, the "covered by" doctrine is similar to the scope of the grievance procedure, found to be a mandatory subject of bargaining in AFGE. Further, as a policy matter, the second prong of the "covered by" test, which is at issue here, is particularly appropriate for negotiations. In this connection, the second prong of the test provides that parties may not demand bargaining over matters that are "inseparably bound up with, and, thus, plainly an aspect of" an agreed on contract term. SSA, 47 FLRA at 1018 (citations omitted). As the majority notes, an important aspect of this determination is the parties' "intent" in bargaining. Decision at 4, quoting U.S. Customs Service, 56 FLRA 809, 814 (2000). The Union's proposals would simply memorialize the intent that the parties are bound only by matters specifically agreed upon, and not other, related matters.

      Moreover, like reopener proposals, finding the proposals here within the scope of mandatory bargaining would enhance stability of bargaining relationships by encouraging parties to enter contracts with longer durations. See NLRB v. Lion Oil Co., 352 U.S. 282, 289-91 (1957). In this regard, in the private sector, reopener proposals -- which, by definition, seek bargaining over matters that are "covered by" a contract -- are both common and considered mandatory subjects of bargaining. McAllister Bros., Inc., 312 N.L.R.B. 1121, 1121, 1129 (1993) (proposal that management could reopen agreement if its competitors operate during a strike with nonunion replacements represented by another labor organization and capturing a specified percentage of the ship docking work normally performed by respondent). Cf. Dolly Madison Indus's, Inc., 182 N.L.R.B. 1037, 1037-38 (1970) ("most favored nations" clause permitting management to automatically modify agreement if union entered into contract with management's competitors providing for more favorable terms regarding wages, hours, and other conditions of employment). Reopener proposals have been found negotiable under the Statute, also. See, e.g., Patent Office Prof'l Ass'n, 56 FLRA 69, 72-73 (2000) (POPA) (proposal allowing reopening of agreement one year after implementation of an automated search program in order to consider problems or conditions that have arisen); AFGE, Local 1995, 47 FLRA 470, 472-73 (1993) (proposal providing that at midterm of agreement, either party may request to reopen agreement to renegotiate a maximum of two articles of agreement); AFGE, AFL-CIO, Local 3804, 21 FLRA 870, 889-91 (1986) (proposal providing that, if agency proposes changes to travel regulations, union may reopen agreement for limited bargaining). [n2] 

      I find no principled basis for distinguishing the instant proposals from reopener proposals. In fact, the instant proposals have a more limited effect on the stability of contracts than many reopener proposals. In this connection, while reopener proposals may seek to reopen a contract as to entire subjects, the instant proposals would permit reopening only as to those aspects of subjects that are not expressly addressed in the contract. In addition, it is reasonable to expect that requiring parties to bargain over the instant proposals would further, not impede, the policies the "covered by" doctrine balances: "favoring the resolution of disputes through bargaining" and avoiding "the disruption that can result from endless negotiations over the same general subject matter." SSA, 47 FLRA at 1017. In this connection, the proposals would encourage parties to reach more comprehensive collective bargaining agreements, and make the intent of those agreements more clear, which could result in fewer disputes as to meaning and application. In these circumstances, I would find that public and private sector precedent supports finding them within the duty to bargain.

      For the foregoing reasons, I would find the proposals to be within the duty to bargain. Accordingly, I dissent.

File 1: Authority's Decision in 59 FLRA No. 35
File 2: Opinion of Member Pope

Footnote # 1 for 59 FLRA No. 35 - Opinion of Member Pope

   The majority correctly notes that, in SSA, 55 FLRA 374 (1999), the Authority referred to the "statutory right" to raise an affirmative "covered by" defense. Id. at 377. However, the Authority's statement in SSA was unexplained, unsupported by pertinent precedent, and unnecessary to the Authority's holding in that case. That is, the statement was mere dicta. In this connection, the Authority's conclusion in SSA was that the respondent had entered into an agreement that limited the application of the "covered by" doctrine -- a conclusion that is in no way dependent on whether the Agency was obligated, or merely permitted, to barga