[ v56 p45 ]
56 FLRA No. 6
U.S. DEPARTMENT OF THE INTERIOR
WASHINGTON, D.C.
AND
U.S. GEOLOGICAL SURVEY
RESTON, VIRGINIA
(Respondents)
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1309
(Charging Party/Union)
WA-CA-30451
(52 FLRA 475 (1996))
_____
DECISION AND ORDER ON REMAND
February 28, 2000
_____
Before the Authority: Donald S. Wasserman Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on remand from the United States Court of Appeals for the Fourth Circuit. U.S. Department of the Interior v. FLRA, 174 F.3d 393 (4th Cir. 1999) (Interior v. FLRA II). In its original decision in this case, the Authority concluded that the Respondent, the U.S. Geological Survey (Survey), violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (Statute) by refusing to bargain over a proposal requiring midterm bargaining that was substantially identical to proposals previously found negotiable by the Authority. U.S. Department of the Interior, Washington, D.C. and U.S. Geological Survey, Reston, Virginia, 52 FLRA 475 (1996) (Interior). [n2] The Authority's decision was based in part on its precedent that under the Statute an agency is obligated, with some exceptions, to bargain over union-initiated midterm proposals. Id. at 479-80.
The Authority's decision was reversed in U.S. Department of the Interior v. FLRA, 132 F.3d 157 (4th Cir. 1997) (Interior v. FLRA I). Subsequently, the U.S. Supreme Court vacated the decision of the Fourth Circuit and remanded the case for further proceedings consistent with the Court's opinion. NFFE, Local 1309 and FLRA v. Department of the Interior, 526 U.S. 86, 119 S. Ct. 1003 (1999) (NFFE and FLRA v. Interior). The Supreme Court found that the Statute is ambiguous with respect to the question of whether agencies are required to bargain over union-initiated midterm proposals and that Congress delegated to the Authority the power to determine "whether, when, where, and what sort of midterm bargaining is required." 119 S. Ct. at 1010. The Court remanded the case so that the Authority would have the opportunity to consider the matter of midterm bargaining, "aware that the Statute permits, but does not compel" the Authority's previous conclusions. Id. at 1011.
Consistent with the Supreme Court's remand instructions, we have considered anew the question of union-initiated midterm bargaining. We conclude that an agency is required to bargain over a proposal obligating the agency to engage in midterm bargaining over matters not contained in or covered by the term agreement. Such proposals are within the duty to bargain for two reasons: First they further the purposes of the Statute and thus restate a statutory obligation; and second, they are not inconsistent with law, rule, or regulation. Applying this determination, we find that Survey committed the unfair labor practices as alleged.
II. Background
A. Facts [n3]
The facts are described in the Authority's original decision. 52 FLRA at 476-77. As relevant on remand, the Union offered the following proposal during negotiations for a successor collective bargaining agreement:
Article 7. Section 2.b. Union-initiated Bargaining. The Union may request and the Employer will be obliged to negotiate on any negotiable matters not covered by the provisions of this agreement.
Stipulation, Exhibit 2 at 1.
Survey refused to negotiate over the proposal, claiming it was outside its obligation to bargain. The Union then filed the unfair labor practice charge which resulted in the instant case. [ v56 p46 ]
B. Relevant Administrative and Judicial Precedent
There is a substantial background of administrative and judicial precedent concerning an agency's obligation to bargain over union-initiated midterm proposals. A brief history of that precedent follows.
1. The Authority's Decisions in IRS I and IRS II
The Authority first considered an agency's obligation to bargain over union-initiated midterm proposals in Internal Revenue Service, 17 FLRA 731 (1985) (IRS I). There the Authority determined that Congress intended to limit the obligation to bargain over union-initiated proposals to situations where the parties were negotiating a basic or term collective bargaining agreement. Id. at 735-36.
IRS I was reversed and remanded by the United States Court of Appeals for the District of Columbia Circuit. National Treasury Employees Union v. FLRA, 810 F.2d 295 (D.C. Cir. 1987) (NTEU v. FLRA). Relying on private sector precedent and congressional intent to encourage and promote collective bargaining in the federal sector, the court held that the obligation to bargain under the Statute extends to union-initiated midterm proposals. Id. at 301.
On remand from the D.C. Circuit, the Authority adopted the court's reasoning and held that an agency is obligated to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters not "contained in or covered by" the term agreement unless the union has waived its right to bargain about the subject matter involved. Internal Revenue Service, 29 FLRA 162, 166 (1987) (IRS II). In response to the Authority's petition for enforcement of IRS II, the Internal Revenue Service suggested that the entire D.C. Circuit initially consider the case. This suggestion was denied. FLRA v. Internal Revenue Service, 838 F.2d 567 (D.C. Cir. 1988) (FLRA v. IRS).
2. The Fourth Circuit's Decision in SSA v. FLRA
In Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v. FLRA), the United States Court of Appeals for the Fourth Circuit expressly disagreed with the reasoning of both the Authority and the D.C. Circuit and concluded that "union-initiated midterm bargaining is not required by the [S]tatute and would undermine the congressional policies underlying the [S]tatute." Id. at 1281. In subsequent cases the Authority respectfully declined to follow the Fourth Circuit's decision, adhering to the holding in IRS II. See, e.g., U.S. Patent and Trademark Office, 45 FLRA 1090, 1091 n.2 (1992), rev'd, 991 F.2d 790 (4th Cir. 1993) (Table); Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 46 FLRA 1184, 1186 (1993) (Wright-Patterson Air Force Base).
3. Department of Energy
In U.S. Department of Energy, Washington, D.C., 51 FLRA 124 (1995) (Department of Energy), the Authority was presented with the issue of midterm bargaining in a new context. In resolving a bargaining impasse, the Federal Service Impasses Panel (Panel) had imposed a provision in a contract providing that during the term of the agreement, the employer would be obligated to bargain over union-initiated proposals not contained in or covered by the agreement unless the union had waived its right to bargain about the subject matter involved. Id. at 125. On review of the contract, the Department of Energy disapproved the provision as being contrary to law, citing SSA v. FLRA. Id.
On alternative grounds, the Authority rejected the Department of Energy's assertion that, under the authority of SSA v. FLRA, the disputed provision was contrary to law. Id. at 127-28. First, the Authority concluded that the disputed contract provision was negotiable because it was not inconsistent with any provision of applicable law, rule, or regulation. Id. at 129. Second, the Authority noted that it had respectfully declined to follow the Fourth Circuit's SSA v. FLRA decision, instead adhering to its precedent that agencies are required under the Statute to engage in midterm bargaining over union-initiated proposals. Id. at 127 n.4. Accordingly, the Authority found that although the negotiability of the provision did not depend on finding a statutory obligation to bargain midterm, the proposal did restate the statutory obligation and was negotiable on that ground as well. Id. at 128 n.5.
The Fourth Circuit granted the Department of Energy's petition for review and reversed the Authority's decision. Department of Energy v. FLRA, 106 F.3d 1158 (4th Cir. 1997) (Energy v. FLRA). Although recognizing that the question of whether the Statute imposes a duty differs from the question of whether an agency must bargain regarding a clause in a collective bargaining agreement, the court found that midterm bargaining is inconsistent with the Statute because it is "at odds with the policies underlying [the Statute] and is wholly contrary to congressional intent." Id. at 1164. [ v56 p47 ]
C. The Authority's Original Decision in This Case
While Energy v. FLRA was pending before the Fourth Circuit, but before the case was decided, the Authority issued its original decision and order in the instant case (52 FLRA 475). As relevant here, the Authority concluded that Survey violated the Statute by refusing to bargain over a proposal substantially identical to one the Authority had determined was within the duty to bargain.
The Authority noted in this regard that the proposal at issue was negotiable both because it "reiterated a right the Union had under the Statute" (id. at 479) and because the proposal was otherwise within the obligation to bargain -- specifically rejecting Survey's assertion that SSA v. FLRA dictated a contrary result. In reaching this conclusion, the Authority expressly relied on the reasoning in Department of Energy. Id. at 480-81. Accordingly, the Authority found that the refusal to bargain was an unfair labor practice and ordered Survey to bargain over the proposal. Id. at 482.
D. The Fourth Circuit's Decision in Interior v. FLRA I
Survey petitioned the Fourth Circuit for review. Finding the case controlled by SSA v. FLRA and Energy v. FLRA, the court granted the petition for review and denied the Authority's cross-application for enforcement. Interior v. FLRA I, 132 F.3d at 162. The court found no meaningful distinction between the legality of a midterm bargaining requirement imposed by the Panel as in Energy v. FLRA, and an agency's obligation to negotiate over a proposal to bargain midterm. Id. at 161. Accordingly, the court found Survey was not obligated to bargain over the Union's proposal. Id. at 162.
E. The Supreme Court's Decision in NFFE and FLRA v. Interior
Acknowledging the split in the United States Courts of Appeals on the issue, the Supreme Court granted certiorari. The Court focused on the issue of whether the Statute "impose[s] a duty to bargain during the term of an existing labor contract." NFFE and FLRA v. Interior, 119 S. Ct. at 1007. Rejecting the view of the Fourth Circuit, the Court majority found "the Statute's language sufficiently ambiguous or open on the point as to require judicial deference to reasonable interpretation or elaboration by the [Authority]." Id.
In reaching this determination, the Court, after pointing out that the Statute did not expressly address union-initiated midterm bargaining, rejected Survey's arguments that the Statute prohibited midterm bargaining. Specifically, the Court disagreed with Survey's assertions that midterm bargaining was inconsistent with the language, legislative history, policies, prior practice, or management rights provision (section 7106(a)) of the Statute. Id. at 1008-1010. Instead, the Court found the statutory ambiguity "inconsistent both with the Fourth Circuit's absolute reading of the Statute and also with the D.C. Circuit's similarly absolute, but opposite, reading." Id. at 1010. The Court found this "statutory ambiguity [to be] perfectly consistent, however, with the conclusion that Congress delegated to the Authority the power to determine . . . whether, when, where, and what sort of midterm bargaining is required." Id.
Finally, noting that the specific question before the Court concerned "whether an agency must bargain endterm about including in the basic labor contract a clause that would require certain forms of midterm bargaining," the Court concluded that "the Statute grants the Authority leeway (within ordinary legal limits) in answering that question as well." Id. at 1011. In this respect, the Court found that the Authority's prior explanation concerning the duty to bargain over such proposals was "more an effort to respond to, and to distinguish, a contrary judicial authority, rather than an independently reasoned effort to develop complex labor policies." Id. Accordingly, the Court remanded to afford the Authority the opportunity to consider the issues of midterm bargaining and the related question of bargaining about midterm bargaining, "aware that the Statute permits, but does not compel, the conclusions [that the Authority] reached." Id.
The Court vacated and remanded the Fourth Circuit's decision in Interior v. FLRA I. In turn, the Fourth Circuit remanded the case to the Authority "for further proceedings consistent with the opinion of the Supreme Court." Interior v. FLRA II, 174 F.3d at 394.
III. Positions of the Parties and Interested Persons
On remand, the Authority invited the parties and, pursuant to a Federal Register Notice, interested persons to file briefs addressing whether and under what circumstances agencies are obligated to engage in midterm bargaining. Specifically, the parties and amici curiae were asked to address the following question: "In the context of resolving this case, what policy considerations and empirical data should the Authority balance in determining whether, when, and where union-initiated midterm bargaining is required?" 64 Fed. Reg. 33,079, 33,081 (1999). The Authority received briefs from the General Counsel, the Respondent, the Charging Party, and nine amici curiae, which are all summarized below. [ v56 p48 ]
A. General Counsel
The General Counsel contends that the Authority should adopt the private sector rule that the obligation to bargain includes bargaining over union-initiated midterm proposals. According to the General Counsel, collective bargaining is enhanced by requiring the parties to jointly address workplace matters as they arise. The General Counsel also asserts that midterm bargaining is consistent with the policies underlying Executive Order 12,871, Labor-Management Partnerships, 3 C.F.R. (1993 Comp.) at 655, reprinted in 5 U.S.C. § 7101 note (1994) (E.O. 12,871).
The General Counsel responded to several arguments against midterm bargaining. First, the General Counsel contends that, notwithstanding assertions to the contrary, union-initiated midterm bargaining makes the collective bargaining process work more efficiently. In that regard, the General Counsel argues that term negotiations are more effective and efficient because a union is not compelled to make proposals over matters that are not a priority at the time of term negotiations. On the other hand, according to the General Counsel, midterm bargaining permits a union to address issues that could not have been foreseen when the term agreement was negotiated.
Second, the General Counsel asserts that claims concerning the negative impact of midterm bargaining are without empirical support. In this regard, the General Counsel asserts that from 1990 until the present time only eleven cases before the Authority involved midterm bargaining, and the General Counsel's research disclosed only six cases in the same period in which a union sought Panel assistance in a midterm bargaining context. Further, the General Counsel asserts that its records indicate that during the last three years union-initiated midterm bargaining was a dispositive issue in less than one percent of the unfair labor practice charges filed. According to the General Counsel, these statistics show either that midterm bargaining is conducted "with little fanfare as part of the collective bargaining process," or that unions, as a matter of fact, rarely initiate midterm bargaining. General Counsel Brief at 11.
The General Counsel contends that the limits on union-initiated midterm bargaining found in the Statute and Authority precedent serve to restrict a union's ability to use continuous bargaining as a negotiating strategy. Citing U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1018 (1993) (SSA, Baltimore), the General Counsel notes that under the Authority's test, not only is a union prohibited from bargaining over a matter expressly contained in the term agreement but also a matter "inseparably bound up with" a subject covered by the agreement. General Counsel Brief at 12. Further, according to the General Counsel, agencies can seek to bargain "zipper clauses," which would foreclose or limit midterm bargaining. Id. at 13-14 (citing FLRA v. IRS, 838 F.2d at 570). In addition, the General Counsel states that a union may only initiate bargaining on matters that do not interfere with management's reserved rights under section 7106(a) of the Statute.
Finally, the General Counsel contends that to allow management to retain the right to raise new issues during the term of the agreement, but to deny unions a limited right to do so, would result in an inequality not justified by the Statute.
B. Respondent
The Respondent, Survey, first argues that agencies should be permitted to bargain over union-initiated midterm proposals but not required to do so. In that regard, Survey states that the Supreme Court "was telling the Authority . . . that the Statute permits but does not compel an agency to bargain on union initiated midterm bargaining proposals." Respondent Brief at 3.
Alternatively, Survey contends that if the Authority determines that agencies are obligated to bargain over union-initiated midterm proposals, section 7131 of the Statute, which provides for official time for union representatives negotiating "a collective bargaining agreement," should not be interpreted to apply to midterm bargaining. According to Survey, unions should be required to pay the cost of such bargaining, or be required to obtain official time only by bargaining for it.
Lastly, Survey asserts that matters excluded from midterm bargaining should include not only matters "contained in or covered by" the term agreement, but also matters "which the union was aware of but chose, for whatever reason, not to bring to the negotiation table." Respondent Brief at 5. According to Survey, union-initiated midterm bargaining should be limited to those matters that could not have been reasonably anticipated by the union.
C. Charging Party [n4]
Noting that in section 7101(a)(1) of the Statute Congress found that collective bargaining contributes to [ v56 p49 ] the efficient conduct of public business, the Charging Party contends that requiring agencies to bargain over union-initiated midterm bargaining furthers the statutory goal of promoting collective bargaining. In that regard, the Charging Party asserts that encouraging joint solutions to unforeseen workplace problems increases productivity, gives parties the flexibility to deal with contingencies as they arise, encourages experimentation, and serves to reduce conflict and tensions in the workplace.
In addition, the Charging Party argues that the availability of midterm bargaining leads to the improvement of term negotiations. The Charging Party states that if unions were foreclosed from bargaining midterm, they would be required to try to anticipate and include in a term agreement any contingency that could conceivably arise in the future. According to the Charging Party, this "kitchen sink" approach to term negotiations would lead to unnecessary bargaining on matters that may never develop into significant issues. Citing experience from actual negotiations, [n5] the Charging Party also contends that unions may be willing to expedite term negotiations and also agree to longer term agreements where they retain the right to raise new issues midterm. Further, the Charging Party asserts that when employers expect that the union can and will raise issues midterm, employers have an incentive to work for a comprehensive term agreement.
Noting that management may initiate changes in conditions of employment during the term of an agreement, the Charging Party asserts that without the right to initiate midterm bargaining, unions would be "confined to a passive role." Charging Party Brief at 8. Citing American Federation of Government Employees v. FLRA, 750 F.2d 143, 148 (D.C. Cir. 1984) (AFGE v. FLRA), the Charging Party states that one of the Statute's goals is creating greater equality between labor and management at the bargaining table. Charging Party Brief at 7. According to the Charging Party, the availability of midterm bargaining "corrects this imbalance and promotes the statutory goal of providing greater equality at the bargaining table." Id. at 8.
The Charging Party also disputes claims that union-initiated midterm bargaining will lead to inefficient piecemeal bargaining and seriatim Panel proceedings are speculative and lacking in empirical support. In that regard, the Charging Party asserts that there have been few Panel cases arising from union-initiated midterm bargaining. In addition, the Charging Party submitted documentation that in one unit where the right to initiate midterm bargaining was guaranteed by contract, the union had submitted only 12 proposals over the course of 10 years.
The Charging Party additionally contends that, consistent with the statutory objectives furthered by midterm bargaining, the right to bargain midterm should be interpreted "as expansively as possible." Charging Party Brief at 10. According to the Charging Party, the right to bargain midterm should be limited in only three circumstances. Specifically the Charging Party argues that the duty to bargain midterm: (1) does not extend to matters covered by the term agreement; (2) may be modified (expanded or limited) by the agreement of the parties; and (3) does not permit either party to engage in bad faith bargaining. The Charging Party asserts that the third restriction will act as a "safeguard against the specter of abusive bargaining tactics." Charging Party Brief at 12.
D. Amicus Curiae Briefs
1. Briefs Supporting the Proposition That Agencies Should Be Obligated to Bargain over Union-Initiated Midterm Proposals [n6]
For the most part, these amici argue that midterm bargaining furthers the statutory goals of encouraging collective bargaining and equalizing the bargaining power of the parties. The amici also emphasize the role midterm bargaining plays in resolving unforeseen workplace problems.
With respect to the alleged impact that midterm bargaining has on effective and efficient government, amici contend that to the extent there is frequent midterm bargaining it is predominantly the result of management-initiated changes, not union-initiated bargaining. In the view of amici, arguments against union-initiated midterm bargaining effectively claim that management should have a right that is denied to unions--a proposition not authorized by the Statute.
Lastly, amici argue that the Authority should abandon its current "contained in and covered by" test and [ v56 p50 ] limit midterm bargaining only where there is a "clear and unmistakable waiver" of the union's right to bargain. According to amici, the current test encourages unions to bargain short-term and superficial agreements in order to preserve the flexibility to bargain midterm over unforeseen changes in the workplace.
2. Briefs Supporting the Proposition That Agencies Should Not Be Obligated to Bargain over Union-Initiated Midterm Proposals [n7]
These amici assert that providing for mandatory bargaining over union-initiated proposals would adversely affect government operations by, among other things, generating continuous issue-by-issue negotiations, creating unfair bargaining leverage for unions, undermining workplace stability, and providing disincentives to engage in term bargaining. In addition, the amici contend that midterm bargaining will be costly to the government, citing, for example, official time, travel and per diem, and asserted lost productivity. Amici also argue that differences between the private and federal sectors, most notably the availability of economic weapons in the private sector, make the private sector practices inapplicable to the federal program.
Further, amici suggest that there are other available means for unions to address workplace problems that may arise midterm. Among the suggested avenues are partnership arrangements created pursuant to E.O. 12,871 and the negotiated grievance procedure. Amici argue that because many safety and health issues are covered by law or regulation, safety and health problems are particularly suited for resolution under a negotiated grievance procedure.
Amici also assert that if the Authority determines that agencies are obligated to bargain over union-initiated midterm proposals, limits should be placed on the scope of such bargaining. They contend that the obligation to bargain over union-initiated midterm proposals should not extend to matters "contained in or covered by" the term agreement. Further, these amici argue that only truly "new" matters be appropriate for midterm bargaining. According to them, any issues raised, but abandoned, in term negotiations should be deemed inappropriate for midterm bargaining. In addition, amici assert that if the Authority finds that agencies are obligated to bargain over union-initiated midterm proposals, it should also find that zipper clauses are a mandatory subject of bargaining.
IV. Analysis and Conclusions
A. The Union's Proposal Is Substantially Identical to One That the Authority Previously Found Negotiable
The Authority found in its original decision that the Union's proposal was substantially identical to that found negotiable in Merit Systems Protection Board Professional Association and Merit Systems Protection Board, Washington, D.C., 30 FLRA 852 (1988). Interior, 52 FLRA at 479. That finding is uncontested and reaffirmed here.
B. Proposals Requiring Union-Initiated Midterm Bargaining Are Within the Duty to Bargain under the Statute
The litigation of this case has focused on the question of whether proposals requiring midterm bargaining in certain situations are within an agency's obligation to bargain. The Supreme Court concluded that Congress has delegated to the Authority the power to determine the extent to which midterm bargaining (or bargaining over midterm bargaining, as specifically at issue here) is required under the Statute. NFFE and FLRA v. Interior, 119 S. Ct. at 1007. For the reasons explained below, we find that the Union's proposal is negotiable for two reasons. First, we conclude that under the Statute, agencies are obligated to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters that are not "contained in or covered by" the term agreement, unless the union has waived its right to bargain about the subject matter involved; thus, the Union's proposal is within the duty to bargain because it restates a statutory obligation. [n8] Second, the proposal is not otherwise inconsistent with federal law or government-wide regulation, and is therefore within the Survey's duty to bargain. [ v56 p51 ]
1. Agencies Are Required to Bargain over Union-Initiated Midterm Proposals
a. Requiring Agencies to Bargain over Union-Initiated Midterm Proposals Is Consistent with Congress's Commitment to Collective Bargaining in the Federal Sector
Congress has unambiguously concluded that collective bargaining in the public sector "safeguards the public interest," "contributes to the effective conduct of public business," and "facilitates and encourages the amicable settlements of disputes." 5 U.S.C. § 7101(a)(1). Nothing in the plain wording of the Statute supports the inference that these conclusions are not as applicable to midterm bargaining as they are to term bargaining. In that regard, the Supreme Court has noted that "[c]ollective bargaining is a continuing process" involving, among other things, "resolution of new problems not covered by existing agreements." Conley v. Gibson, 355 U.S. 41, 46 (1957).
As argued by the General Counsel, the Charging Party and a number of amici, matters appropriate for resolution through collective bargaining are sometimes unforeseen and unforeseeable at the time of term negotiations. These matters include not only problems that might arise because of a change in workplace environment, but also new areas of agency discretion occasioned by changes in law or regulations. For example, when agencies were authorized to provide a portion of premiums for employee liability insurance, the National Treasury Employees Union was able to raise the issue midterm rather than have to wait for either management to initiate action or for the next round of term negotiations. [n9] Charging Party Brief, Affidavit of Director of Negotiations for the National Treasury Employees Union at 2. Such bargaining furthers the Statute's goal of enabling employees, "through labor organizations of their own choosing" to more timely participate in "decisions which affect them" and in cooperatively resolving disputes. 5 U.S.C. § 7101(a)(1). Moreover, the negotiation of such workplace issues is preferable to addressing them through the more adversarial grievance/arbitration process, as suggested by one amicus. [n10] Brief of William C. Owen at 9.
Further, the Supreme Court has recognized that "[i]n passing the Civil Service Reform Act, Congress unquestionably intended to strengthen the position of federal unions and make the collective-bargaining process a more effective instrument of the public interest . . . ." Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 107 (1983); see also AFGE v. FLRA, 750 F.2d at 148 ("equalizing the positions of labor and management at the bargaining table" is a primary goal of the Statute). Consistent with those goals, Congress has defined the obligation to bargain as "mutual." 5 U.S.C. § 7103(a)(12). It is undisputed that the parties must bargain over an agency employer's proposed changes in conditions of employment midterm, whether the proposed change involves the exercise of the management rights set forth in section 7106(a) of the Statute, or matters that are fully negotiable. [n11] Requiring an agency, during the term of an agreement, to bargain over a union's proposed changes in negotiable conditions of employment thus maintains the mutuality of the bargaining obligation prescribed in the Statute. Because this requirement serves to equalize the positions of the parties, we disagree with our dissenting colleague's determination that "a counterbalance ... is appropriate" to the union's right to engage in midterm bargaining. [n12] Dissent at 31. With respect to negotiable conditions of employment, the rights and obligations of the unions and the agencies already are equivalent. And as the D.C. Circuit has recognized, collective bargaining, [ v56 p52 ] including midterm bargaining, is in the public interest because it "contributes to stability in federal labor- management relations and effective government." NTEU v. FLRA, 810 F.2d at 300.
In addition, permitting unions to raise issues at the time they arise or become a priority for the parties serves the public interest in a more efficient Government because it will likely lead to more focused negotiations. As noted above, the ability to bargain over such issues in a timely manner is preferable to the alternative of leaving potentially important concerns unaddressed for perhaps a period of years until term negotiations on the basic contract commence again. Moreover, requiring unions to raise matters that do not currently present problems, but might do so in the future, could unnecessarily and inefficiently broaden and prolong term negotiations. That is, by permitting unions to raise certain matters midterm, the term negotiations will, in our view, proceed more efficiently in addressing existing and primary problems, and there will be no requirement to bargain over remote and secondary issues that do not appear to raise immediate concerns.
For all these reasons, we find that requiring agencies to bargain over union-initiated midterm proposals furthers Congress's goal of promoting and strengthening collective bargaining in the federal workplace.
b. Union-Initiated Midterm Bargaining Will Not Cause Inefficiency in Government
Mindful of Congress's admonition in section 7101(b) that the Statute should be interpreted in a manner consistent with an effective and efficient government, it is appropriate that we consider whether the benefits for collective bargaining found above are outweighed by potential costs and disruptions to government operations. [n13] In that regard, amici, relying on and replicating arguments addressed with approval by the Fourth Circuit in SSA v. FLRA, assert that: unions will attempt to gain a tactical advantage by withholding proposals during term contract negotiations and then later pressing matters piecemeal during the term of the basic contract (Brief for Pension Benefit Guaranty Corporation at 2; Brief for Social Security Administration at 6-7); there will be a significant number of midterm negotiations involving less important issues that will ultimately have to be resolved by the Panel (Brief for Pension Benefit Guaranty Corporation at 2); and this dispersal of the collective bargaining process will destabilize labor relations and increase costs as a result of rolling or continuous bargaining (Brief for the Department of the Navy at 4; Brief for Kansas National Guard at 1; Brief for Pension Benefit Guaranty Corporation at 1; Brief for Social Security Administration at 3-4).
For the reasons that follow, we find that the evidence in the record before us supports the conclusion that requiring agencies to bargain over union-initiated midterm proposals will not result in significant costs or disruptions that would outweigh the benefits of such bargaining. This evidence includes the lack of litigation over midterm bargaining issues, the actual experience of the parties, and the legal constraints on the scope of midterm bargaining.
With regard to litigation, review of Authority decisions reveals that only a few agencies have resisted the Authority's established position on the obligation to bargain midterm. Specifically, since 1987, when the Authority issued its decision in IRS II establishing that agencies are obligated to bargain over union-initiated midterm proposals, the Authority has been presented with only three cases, outside of the geographical confines of the Fourth Circuit, where agencies have been found to have violated the Statute by refusing to engage in midterm bargaining. [n14] These three cases comprise substantially less than one percent of the unfair labor practice cases resolved by the Authority during the same period. Further, during this same 12-year period, there have been only seven reported instances (approximately one percent of the Panel's reported decisions during that period) where the Panel has been obliged to resolve union-initiated midterm disputes. [n15] In addition, according to the General Counsel, midterm bargaining is a dispositive issue in less than one percent of unfair labor practice charges filed. General Counsel Brief at 11. We [ v56 p53 ] agree with the General Counsel's assertion that the lack of litigation suggests that union-initiated midterm bargaining is either infrequent or that it is not a significant area of concern for the parties. [n16]
Further, although the reported experience with union-initiated midterm bargaining is limited, it supports the conclusion that such bargaining has not and will not lead to continuous bargaining. According to NTEU's Director of Negotiations, in a nationwide bargaining unit of approximately 98,000 employees, the union has initiated midterm bargaining on 12 occasions in the past 10 years. Charging Party Brief, Affidavit of Director of Negotiations for the National Treasury Employees Union at 1.
On the other hand, the record is devoid of probative evidence of excessive costs or disruption to agency operations as a result of union-initiated midterm bargaining. To establish the significant costs of bargaining on official time, Amicus Social Security Administration submitted the Office of Personnel Management's Report on the use of official time for the first six months of 1998. However, that report sheds no light on the costs associated with midterm bargaining because the report only shows the amount of official time involved in "negotiations." There is no way of extracting from that data any information on the use of official time for midterm bargaining, let alone union-initiated midterm bargaining.
In addition, constraints on union-initiated midterm bargaining make it unlikely that it will lead to continuous issue-by-issue bargaining. First, an agency is not required to bargain during the term of a collective bargaining agreement on matters that are "contained in or covered by" an agreement. IRS II, 29 FLRA at 166. The framework to determine whether a matter is "contained in or covered by" an agreement is established in SSA, Baltimore, 47 FLRA at 1018 (examining "whether the matter is expressly contained in" or "'inseparably bound up with and . . . thus [is] plainly an aspect of . . . a subject expressly covered by the contract'" (citations omitted)). And, as the Authority noted in SSA, Baltimore, the "contained in or covered by test" balances the need for stability and the flexibility to address new matters. Id. at 1016-18. Some amici, agreeing with the Fourth Circuit's analysis, have suggested that unions will evade the "contained in or covered-by" limitation by withholding matters from term negotiations. These suggestions rely on the incorrect premise that unions have the ability unilaterally to control the breadth and scope of matters that will be included in a basic labor contract. Rather, during term negotiations either party has the ability and the right to bargain over any condition of employment, and it is an unfair labor practice for the other to refuse to engage in bargaining over such negotiable matters. [n17] See American Federation of Government Employees, Interdepartmental Local 3723, AFL-CIO, 9 FLRA 744, 754-55 (1982), aff'd, 712 F.2d 640 (D.C. Cir. 1983) (union commits unfair labor practice when it refuses to bargain over mandatory subject of bargaining).
Second, an agency is not required to bargain midterm where the union has waived its right to bargain over the subject matter involved. Waivers of bargaining rights may be established by express agreement or by bargaining history. IRS II, 29 FLRA at 166. The test to analyze whether there has been a waiver by bargaining history is set out in Selfridge National Guard Base, 46 FLRA at 585 (examining whether matter has been "fully discussed and consciously explored during negotiations" and whether union has "consciously yielded or otherwise clearly and unmistakably waived its interest in the matter"). The conclusion that the covered-by and waiver doctrines have heretofore adequately regulated [ v56 p54 ] midterm bargaining is supported by the infrequency of midterm bargaining-related litigation.
In sum, arguments that union-initiated midterm bargaining has been or will be harmful to the federal sector labor relations program in general, or individual labor and management relationships in particular, are unsupported and speculative. Finding that midterm bargaining is consistent with Congress's commitment to collective bargaining in the federal sector, we hold that agencies are obligated to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters not "contained in or covered by" the existing agreement unless the union has waived its right to bargain about the subject matter involved.
2. The Union's Proposal is Within the Agency's Obligation to Bargain
a. The Union's Proposal Restates a Statutory Obligation
Because the Union's proposal merely restates the statutory obligation described in the preceding section, it is within the agency's obligation to bargain. See National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1136 (1991).
b. The Proposal Is Not Otherwise Inconsistent with Law or Government-wide Regulation
As we held in Department of Energy, a proposal or provision that requires an agency to bargain midterm over union-initiated proposals concerning matters not contained in or covered by the term agreement is not inconsistent with any law or Government-wide regulation. 51 FLRA at 129. Neither the parties nor the amici have claimed that there is any law or regulation with which the proposal at issue is inconsistent. Accordingly we find that the proposal is within the agency's obligation to bargain.
C. Other Matters Raised by the Parties and Amici Are Not Before the Authority in this Case
The parties and amici have raised a number of issues relating to midterm bargaining, such as whether "zipper clauses" are a mandatory subject of negotiation, whether there may be limits on official time for midterm negotiations, and whether the Authority's current application of the "contained in or covered by doctrine" should be broadened or constricted. However, because deciding these and other related issues is not required to resolve the instant case, we will not consider them here. Resolution of these and other issues is more appropriate where the matters are squarely presented. See Navegar, Incorporated v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997) (declining to decide cases before they are ripe avoids adjudicating "abstract disagreements," enhances judicial economy, and ensures that an adequate record exists to support an informed decision) (internal quotations omitted); see also, Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 51 FLRA 986, 992 n.8 (1996) (recognizing that its decision left certain questions unanswered, the Authority noted that these issues could be resolved when an appropriate case is presented). [n18]
D. Survey Violated the Statute as Alleged
For the reasons expressed above, we find that Survey refused to bargain over a proposal that was substantially identical to one previously found negotiable by the Authority and otherwise within its obligation to bargain under the Statute. Such conduct violates section 7116(a)(1) and (5) of the Statute. See U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia and Oregon Military Department, Oregon National Guard, Salem, Oregon, 47 FLRA 1213, 1217 (1993). [ v56 p55 ]
V. Order
Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Federal Service Labor- Management Relations Statute, the U.S. Geological Survey, Reston, Virginia, shall:
1. Cease and desist from:
(a) Failing and refusing to negotiate with the National Federation of Federal Employees, Local 1309, the employees' exclusive bargaining representative, over a proposal authorizing union-initiated midterm bargaining that is substantially identical to a proposal previously found negotiable by the Authority.
(b) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request, bargain in good faith with the National Federation of Federal Employees, Local 1309, over the proposal authorizing union-initiated midterm bargaining.
(b) Post at its facilities copies of the attached notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the head of the U.S. Geological Survey, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
All allegations in the amended complaint pertaining to the U.S. Department of the Interior, Washington, D.C. are dismissed.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the U.S. Geological Survey, Reston, Virginia, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice:
We hereby notify bargaining unit employees that:
WE WILL NOT refuse to negotiate with the National Federation of Federal Employees, Local 1309, the employees' exclusive bargaining representative, over a proposal authorizing union-initiated midterm bargaining that is substantially identical to a proposal previously found negotiable by the Authority.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL, upon request, bargain in good faith with the National Federation of Federal Employees, Local 1309, over the proposal authorizing union-initiated midterm bargaining.
______________________
(Activity)
Dated:___________ By:______________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington Regional Office, whose address is: Tech World Plaza, 800 K Street, N.W., Suite 910, Washington, D.C. 20001-1206 and whose telephone number is: (202) 482-6700.
File 1: Authority's Decision in 56 FLRA No.
6
File 2: Opinion of Member Cabaniss
Footnote # 1 for 56 FLRA No. 6 - Authority's Decision
Member Cabaniss's separate opinion, concurring in part and dissenting in part, is set forth at the end of this decision.
Footnote # 2 for 56 FLRA No. 6 - Authority's Decision
The Authority dismissed the complaint with respect to the Department of the Interior, finding that only Survey violated the Statute. Interior, 52 FLRA at 481-82.
Footnote # 3 for 56 FLRA No. 6 - Authority's Decision
The case was submitted on a stipulated record.
Footnote # 4 for 56 FLRA No. 6 - Authority's Decision
The Charging Party was represented by the General Counsel of the National Treasury Employees Union (NTEU). NTEU participated as amicus curiae, adopting the Charging Party's positions as its own.
Footnote # 5 for 56 FLRA No. 6 - Authority's Decision
The Charging Party submitted with its brief an affidavit of the Director of Negotiations for the National Treasury Employees Union, relating certain experiences with midterm bargaining.
Footnote # 6 for 56 FLRA No. 6 - Authority's Decision
In addition to NTEU (see n.4, above), these briefs were filed by the Washington Plate Printers Union, Local No. 2, IPPDSEU, AFL-CIO; the American Federation of Government Employees; and the National Association of Air Traffic Specialists. To the extent that any of the amici, including those arguing the other side of the question, raise arguments substantially identical to those raised by the parties, those arguments will not be repeated here.
Footnote # 7 for 56 FLRA No. 6 - Authority's Decision
These briefs were filed by the Department of the Navy; the Social Security Administration; the Pension Benefit Guaranty Corporation; the Kansas National Guard; and, an individual labor relations consultant.
Footnote # 8 for 56 FLRA No. 6 - Authority's Decision
In dissent, our colleague states that "the issue of an independent statutory right to engage in union midterm bargaining was not necessary to the resolution of the [Authority's] original decision." Dissent at 32. We disagree. The existence of a statutory right to engage in midterm bargaining was one of the bases of the Authority's original decision in this case that the agency violated the Statute in refusing to negotiate over the proposal. 52 FLRA at 479-80. More importantly, the expressed purpose of the Supreme Court's remand in this case was to afford the Authority the opportunity to "resolve the question of midterm bargaining [and] the related question of bargaining about midterm bargaining." 119 S. Ct. at 1011.
Footnote # 9 for 56 FLRA No. 6 - Authority's Decision
Our dissenting colleague posits that examples such as this are "rare," and thus do not support permitting unions to engage in midterm bargaining. Dissent at 29. Assuming the accuracy of her supposition, we disagree with her conclusion. Even if rarely used, the right of unions to occasionally address such important issues midterm is critical and entirely consistent with Congress' intent to promote collective bargaining.
Footnote # 10 for 56 FLRA No. 6 - Authority's Decision
Similarly, although amicus SSA is correct in asserting that midterm issues may also be addressed through labor-management partnership arrangements (Brief for Social Security Administration at 8), there is no statutory obligation to do so. In that regard, partnerships are intended to be an additional tool for the resolution of workplace issues, not a replacement for collective bargaining. See E.O. 12,871 § 2(d) (in addition to partnership arrangements, agencies are required to negotiate subjects set forth in section 7106(b)(1) of the Statute).
Footnote # 11 for 56 FLRA No. 6 - Authority's Decision
With respect to the latter, see, e.g., Marine Corps Logistics Base, Barstow, California, 46 FLRA 782, 783 (1992) (agency obligated to bargain over changes in prices of soft drinks in vending machines).
Footnote # 12 for 56 FLRA No. 6 - Authority's Decision
Neither Survey nor the dissent recognize that, under the Statute, there is a mutual obligation to bargain. Survey argues that agencies may bargain over union-initiated midterm proposals but should not be required to do so. Respondent Brief at 3. Under Survey's approach, unions would have an obligation to bargain over agency-initiated proposals, but agencies would have the discretion to bargain or not over union-initiated proposals. The dissent theorizes that agencies --and only agencies -- have the right to make changes midterm on fully negotiable matters that do not implicate management's 7106(a) rights. Dissent at 31 n.1. The dissent's remedy for this obvious imbalance is to permit unions to bargain to limit the agency's "right" to make such changes midterm. Id. This theory not only lacks a basis in the Statute, but also represents an asymmetrical view of the parties' collective bargaining rights and obligations.
Footnote # 13 for 56 FLRA No. 6 - Authority's Decision
Our dissenting colleague concludes that union-initiated midterm bargaining is at odds with "the statutory standard under 7101(b)." Dissent at 31. We disagree with both this conclusion and the invocation of 7101(b) as an absolute standard in this or any other case. With regard to the latter point, the Authority is required to interpret the Statute "in a manner consistent with the requirement of an effective and efficient Government." 5 U.S.C. § 7101(b). In so doing, however, the Authority must also bear in mind and balance other salient protections in the Statute, such as in this instance, the right to bargain collectively set out in section 7101(a). Further, even if we were to assume that midterm bargaining would have an adverse effect on government efficiency, the courts have recognized that the Authority must balance any tensions that may exist between the multiple statutory goals. See NTEU v. FLRA, 826 F.2d 114, 121 (D.C. Cir. 1987); see also AFGE, SSA Council 220, AFL-CIO v. FLRA, 840 F.2d 925, 929 (D.C. Cir. 1988).
Footnote # 14 for 56 FLRA No. 6 - Authority's Decision
Wright-Patterson Air Force Base, 46 FLRA at 1184; Headquarters, 127th Tactical Fighter Wing, Michigan Air National Guard, Selfridge Air National Guard Base, Michigan, 46 FLRA 582 (1992) (Selfridge Air National Guard Base); Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 45 FLRA 1290 (1992).
Footnote # 15 for 56 FLRA No. 6 - Authority's Decision
Department of Veterans Affairs, Edith Nourse Rogers Memorial Hospital, Bedford, Massachusetts and Local R1-32, National Association of Government Employees, SEIU, AFL-CIO, 94 FSIP 97 (1994); Department of Defense, Department of Defense Dependent Schools, Alexandria, VA and Overseas Education Association, 92 FSIP 103 (1992); United States International Trade Commission, Washington, D.C. and Local 2211, AFGE, AFL-CIO, 91 FSIP 205 (1992); Department of the Treasury, Internal Revenue Service, Washington, D.C. and National Treasury Employees, 91 FSIP 229 (1992); Department of the Treasury, Internal Revenue Service, Memphis Service Center, Memphis, Tennessee and Chapter 98, National Treasury Employees Union, 91 FSIP 45 (1992); Departments of the Army & Air Force, Army & Air Force Exchange Service, Waco Distribution Center, Waco, Texas and Local 4042, American Federation of Government Employees, AFL-CIO, 90 FSIP 191 (1991); United States Federal Trade Commission, Washington, D.C. and Local 2211, American Federation of Government Employees, AFL-CIO, 90 FSIP 86 (1990).
Footnote # 16 for 56 FLRA No. 6 - Authority's Decision
The dissent questions the significance of the limited empirical data. Though the numbers are small, the very paucity of litigation over this issue directly rebuts the claims of the agency amici that union-initiated midterm bargaining will have significant effects on governmental operations. Moreover, as noted below, none of the empirical data reveals agency disruption or inefficiency.
Footnote # 17 for 56 FLRA No. 6 - Authority's Decision
Contrary to the suggestion of our dissenting colleague, we are not implying that agencies should therefore negotiate "extensive collective bargaining agreements" in order to expand the subjects covered by a term agreement. Dissent at 31-32 n.2. Our point is a simple one: neither agencies nor unions have the unilateral ability to control the range of matters over which the parties will bargain during term negotiations. If either party desires to preclude midterm bargaining over a negotiable matter, that party is entitled to bargain on the matter. In any event, the parties are free to jointly agree to define their midterm bargaining obligations as they see fit.
Footnote # 18 for 56 FLRA No. 6 - Authority's Decision
The dissent "disagree[s] with the decision by the majority to not seek input from the general public and the parties here regarding the issue of 'zipper clauses'" (Dissent at 29) and asserts that the negotiability of zipper clauses is not "abstract." Id. at 32. With regard to the former, the information sought from the parties and the public by the Authority was in complete accord with the remand instructions of the Supreme Court. In addition, we note that there was no dissent to the broad question posed (see supra Section III), which, as reflected above, elicited amici views on zipper clauses. With regard to the latter, we adhere to our view that it is preferable to address the issue of zipper clauses, if and when it arises, in the context of an actual dispute. As the issue of zipper clauses is not before us, there is no reason to specifically seek information from the parties at this time.