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 bargain, in order, over 17 separate subjects. See Jt. Exh. N. Significantly, the Union proposed bargaining over 6 separate subjects before the revised NIAP. See id.

      As the Union was attempting to condition bargaining over the revised NIAP on bargaining over unrelated matters in the expired, term agreement, the Agency did not violate the Statute by implementing the revised NIAP without completing bargaining, and the Arbitrator's award is contrary to law.

      Consistent with the foregoing analysis, existing, well-settled precedent resolves the exceptions. For unknown reasons, however, the majority is not content merely to apply precedent and, instead, bases its decision on an unnecessary analysis of irrelevant issues. First, the majority holds that the Union's ground rule constituted a permissive subject of bargaining because it sought to combine term bargaining with impact and implementation bargaining. See Majority Opinion at 18. This is wrong. The problem with the proposed ground rule is not that it sought to combine bargaining over the term agreement with impact and implementation bargaining. The problem with the proposed ground rule was that it sought to combine bargaining over unrelated provisions in the term agreement with impact and implementation bargaining. The distinction is important. In this case, for example, it is undisputed that the revised NIAP changed the parties' term agreement. [n2]  To the extent that these changes concerned mandatory subjects of bargaining, the Agency was required to negotiate over them prior to implementation. See United States DOJ, INS, Wash., D.C., 52 FLRA 256, 260 n.3 (1996); FAA, N.W. Mountain Region, Seattle, Wash., 14 FLRA 644, 647 (1984). Thus, if the Union had limited its bargaining request to related, mandatory provisions of the term agreement, then the Agency would have been required to bargain over these provisions prior to implementing the change. [n3]  Second, the majority builds on its error by describing the Union's proposed ground rule as a "waiver of the Agency's right to bargain only" over procedures and appropriate arrangements that address the revised NIAP. Majority Opinion at 18. This case is about bargaining over unrelated matters; waiver has nothing to do with it.

      The scope of an agency's obligation to bargain over changes in conditions of employment is a fundamental labor relations issue, and the Authority owes unions and agencies clear rules that are easy to apply. The majority's decision does not establish such rules. Therefore, while I agree that the award is contrary to law, I do not join the majority opinion.


File 1: Authority's Decision in 59 FLRA No. 128
File 2: Opinion of Member Pope


Footnote # 1 for 59 FLRA No. 128 - Opinion of Member Pope

   The Union requested to bargain over Article 4 (Union Rights), Article 10 (Training), Article 12 (Reduction-in-Force), Article 19 (Safety and Health), Article 20 (Assignment of Work), Article 21 (Hours of Work), Article 22 (Overtime), Article 34 (Access to Facilities and Services), Article 35 (Joint Committees and Partnership), and Article 36 (Competitive Selections). Jt. Exh. H.


Footnote # 2 for 59 FLRA No. 128 - Opinion of Member Pope

   Specifically, the revised NIAP affected Articles 20, 21, 22, and 37 of the term agreement. See Award at 5.


Footnote # 3 for 59 FLRA No. 128 - Opinion of Member Pope

   The majority gives a passing nod to the idea that the Agency could not change mandatory provisions in the term agreement without bargaining. See Majority Opinion at 19, n.20. The majority also holds, however, that the Agency had "the right to insist" that ter