File 2: Opinion of Member Pope
[ v59 p712 ]
Concurring Opinion of Member Pope:
I agree with majority that the Arbitrator erred in concluding that the Agency violated the Statute when it implemented the proposed NIAP without completing negotiations. However, in my view, this conclusion is amply supported by the application of settled precedent. Accordingly, I write separately.
The precedent necessary to resolve the exceptions in this case is well established. The Authority has held that, during impact and implementation bargaining, an agency is obligated to bargain only over proposals that are reasonably related to the proposed change. See United States Department of the Treasury, Customs Service, Washington, DC, 38 FLRA 770, 783 (1990); Dep't of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 22 FLRA 502, 506 (1986); AFGE, Local 217, 21 FLRA 62, 67 (1986); see also FLRA v. United States Dep't of Justice, 994 F.2d 868 (D.C. Cir 1993)(agency did not violate Statute by failing to bargain over a matter outside the scope of impact and implementation bargaining). In the specific context of bargaining over ground rules, the Authority has also held that a party "may not insist on bargaining over ground rules which do not enable the parties to fulfill their mutual obligation" to bargain. United Stated Dep't of the Air Force, HQ, Air Force Logistics Command, Wright-Patterson AFB, Ohio, 36 FLRA 912, 916 (1990).
The facts in this case amply demonstrate that the Union was conditioning bargaining over the revised NIAP on bargaining over unrelated matters in the term agreement. In particular, in response to the Agency's request to bargain over the revised NIAP, the Union stated that it requested to bargain over 10 articles in the term agreement, that it reserved the right to request bargaining over additional articles, and that the revised NIAP would be incorporated into the term agreement and subject to ratification. See Jt. Exh. H. It is clear that some of the specified 10 articles were unrelated to the NIAP. [n1] In fact, the Union's own analysis identified only 3 of the 10 articles as related to the revised NIAP. See Union Exh. 5 (stating that the revised NIAP affected Articles 20, 21, and 22 of the term agreement). Moreover, the Union subsequently proposed that the parties