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47 FLRA No. 39

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1995

(Union)

and

U.S. DEPARTMENT OF ENERGY

MORGANTOWN ENERGY TECHNOLOGY CENTER

MORGANTOWN, WEST VIRGINIA

(Agency)

0-NG-2095

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

April 20, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal.⁽¹⁾ The proposal provides that at the midterm of the parties' collective bargaining agreement, either party may request to reopen the contract to renegotiate a maximum of two articles contained in the contract. For the following reasons, we conclude that the proposal is negotiable.

II. Proposal

MID-TERM NEGOTIATIONS

Section a. The parties contractually agree that at the [midterm] of this agreement, either party may request to reopen the contract to renegotiate a maximum of two articles contained within this agreement.

III. Positions of the Parties

A. Agency

The Agency contends in essence that the proposal is contrary to the Statute because it would promote instability during the term of the agreement. The Agency asserts that instability in collective bargaining relationships is incompatible "with the most basic statutory objective of protecting the 'paramount right of the public to as effective and efficient a Government as possible.'" Statement at 3 (quoting Social Security Administration v. FLRA, 956 F.2d 1280, 1288 (4th Cir. 1992) (SSA)). The Agency claims that, under the proposal, employees and supervisors could not depend on a stable working relationship because nothing in the parties' agreement would be final. Therefore, the Agency argues that the proposal would lead to "great diminution of stability in the labor relations program" and a "great increase in the costs of bargaining and the attendant dispute resolution processes." Id. at 5. Relying on the decision of the Court of Appeals for the Fourth Circuit in SSA, the Agency asserts that "there is no statutory duty to bargain midterm except in response to midterm changes proposed by management." Id. at 3. The Agency concedes that the Authority has declined to follow the Fourth Circuit's decision in SSA, but urges the Authority to reconsider its position.

B. Union

The Union contends that the Agency has not alleged that the proposal violates any law, rule, or regulation. The Union asserts that the proposal "provides for the typical contract reopener where either party may actually negotiate modifications to the previously-agreed terms of the [parties'] contract" and that "such proposals have been common in [F]ederal sector contracts" for many years. Response at 3, 4.

Citing National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Grand Junction, Colorado, 24 FLRA 147 (1986) (Proposal 1) (VAMC), the Union argues that proposals similar to the proposal in this case have been found negotiable by the Authority. The Union states that although the proposal in VAMC "addresses a slightly different issue" than the issue presented by the proposal in this case, "the Authority's rationale [in VAMC] clearly endorses the obligatory nature of bargaining over" contract reopener proposals. Id. at 6. The Union asserts that its proposal "reiterates a right the Union has under the Statute." Id. at 7 (citing Merit Systems Protection Board Professional Association and Merit Systems Protection Board, Washington, D.C., 30 FLRA 852, 859-60 (1988); Internal Revenue Service, 29 FLRA 162, 166 (1987)).

IV. Analysis and Conclusions

The proposal provides that at the midterm of the parties' collective bargaining agreement, either party may request to reopen the contract to renegotiate a maximum of two articles contained in the agreement. We find that the proposal is negotiable.

Under section 7117(a)(1) of the Statute, a proposal will be found nonnegotiable if, among other things, it is inconsistent with Federal law. See, for example, National Federation of Federal Employees, Local 29 and U.S. Department of the Army, Engineer District, Kansas City, Missouri, 45 FLRA 603, 620-21 (1992). However, the Agency cites no specific provision of law with which the proposal is allegedly inconsistent. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. See, for example, Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 820 (1991). A party failing to meet this burden acts at its peril. Id.

Even if we construe the Agency's argument that the proposal is incompatible "with the most basic statutory objective of protecting the 'paramount right of the public to as effective and efficient a Government as possible'" as a contention that the proposal is inconsistent with section 7101 of the Statute, we reject that contention. Statement at 3 (quoting SSA, 956 F.2d at 1288). The Agency has not demonstrated, and we find no basis in the record on which to conclude, that the limited reopener clause provided by the proposal would lead to an unstable collective bargaining relationship between the parties so as to be inconsistent with the statement in section 7101 of the Statute that the provisions of the Statute "should be interpreted in a manner consistent with the requirement of an effective and efficient Government." 5 U.S.C. § 7101(b). See, for example, U.S. Department of Health and Human Services, Social Security Administration, 44 FLRA 230, 239-40 (1992) (memorandum of understanding containing limited reopener clause allowing possible subsequent modification of three existing contract articles held to contain terms and conditions of employment sufficient to stabilize parties' relationship for contract bar purposes under section 7111(f)(3) of the Statute).

In our view, the Agency's reliance on the court's decision in SSA is misplaced. In SSA, the court found that an agency did not have an obligation to bargain midterm over union-initiated proposals in the absence of management action changing unit employees' conditions of employment.⁽²⁾ In contrast, the issue presented by the proposal in this case is whether the Agency is prohibited by law from entering into the proposed reopener clause or whether the proposal is otherwise nonnegotiable. There is nothing in SSA that demonstrates that the Agency is prohibited by law from entering into the reopener clause proposed by the Union or that the proposal is otherwise nonnegotiable.

Finally, we note the Agency's assertion that the proposal would lead to a "great increase in the costs of bargaining and the attendant dispute resolution processes." Statement at 5. We find that the Agency's assertion is speculative and does not provide a basis for finding the proposal nonnegotiable. Moreover, when considering cost arguments in contexts other than management's right to determine its budget under section 7106(a)(1) of the Statute, we have held that an agency is not exempt from the obligation to bargain over a union proposal solely because that proposal may result in an increase in costs. See American Federation of Government Employees, Local 1122 and U.S. Department of Health and Human Services, Social Security Administration, Western Program Service Center, Richmond, California, 47 FLRA No. 20, slip op. at 12 (1993).

Accordingly, we conclude that the proposal is negotiable under section 7117(a)(1) of the Statute.

V. Order

The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over the proposal.⁽³⁾

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. On December 3, 1992, the Union requested that its negotiability appeal, which concerned two proposals, be withdrawn without prejudice so that the Union could proceed with its attempt to have the Federal Service Impasses Panel resolve the impasse in this matter. The Agency opposed the Union's request. Subsequently, on January 26, 1993, the Union requested the Authority to disregard the Union's earlier request to withdraw its negotiability appeal without prejudice. The Union's January 26 request is hereby granted. Consequently, it is unnecessary to address the Agency's objection to the Union's December 3 request. Further, on February 23, 1993, the Union withdrew its appeal as to Proposal 2, without objection by the Agency. Accordingly, we will not address Proposal 2.

2. As acknowledged by the Agency, the Authority has respectfully declined to follow the Fourth Circuit's decision in SSA. See Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 45 FLRA 1290, 1291 (1992).

3. In finding the proposal to be negotiable, we make no

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findings as to its merits.