National Association of Government Employees, Local R5-136 v. Federal Labor Relations Authority, No. 03-1127 (D.C. Cir. April 6, 2004)

Finding FLRA's interpretation of the contract "entirely untenable," the D.C. Circuit reversed FLRA's dismissal of one of two refusal-to-bargain ULP complaints. (FLRA, based on its interpretation of the contract's provisions on midterm bargaining procedures, had found that the VA Medical Center's changes in parking policy weren't implemented until after the period for timely submission of proposals had run.) The court affirmed, however, FLRA's dismissal of the second complaint, involving the Medical Center's decision to let patients park in a designated "employee lot." It agreed that patient, as opposed to employee, parking is a permissive subject of bargaining dealing with the means of performing the agency's work, and therefore there was no obligation to bargain on the decision. Nor was there a duty to engage in I&I bargaining because any adverse impact on bargaining unit employees was de minimis. National Association of Government Employees, Local R5-136 v. Federal Labor Relations Authority, No. 03-1127 (D.C. Cir. April 6, 2004).

We here limit ourselves to the first complaint dealing with refusing to bargain over the union's proposals.

The agreement's provisions on midterm bargaining procedures read, in part, as follows:

B. The Union shall have fifteen (15) calendar days from the date of notification to request bargaining and to forward written proposals to the Employer except in emergency situations where a 15 day notice would not be practicable.

C. If the Union does not request bargaining within the time limit, the Employer may implement the proposed changes.

D. Upon timely request by the Union, bargaining will normally commence within ten (10) calendar days, unless otherwise agreed upon by the parties.

On August 24, 1999, the union received notice of the Medical Center's proposed changes to the "'Employee Parking Lot' and Bravo Street" in order to "provide additional patient parking and to preclude traffic congestion on Bravo Street."

On August 31, the union sent a memo to the Medical Center in which it acknowledged receipt of the notice, requested bargaining on the changes, asked for further information, indicated that the union would submit proposals upon receiving certain information, and proposed that the status quo be maintained. Not hearing from the Medical Center, on September 20 the union reiterated that it would submit proposals after being able to review the information it had asked for. The activity responded to the union's request for information on October 27.

On November 17, approximately 15 days after receipt of the information, the union submitted proposals regarding the proposed changes. After the union submitted its proposals the activity implemented changes to Bravo Street parking.

When the union asked why it had not received any responses to its parking proposals, the activity said it considered the proposals untimely.

In a split decision, the Authority (Member Pope dissenting), disagreed with the ALJ who had found that the union's request to maintain the status quo constituted a negotiable proposal giving rise to an obligation to bargain and that the specific proposals submitted after the union received the requested information were timely.

FLRA said the following:

Although there was no actual bargaining with respect to the status quo proposal, the Respondent, in fact, complied with the proposal because it maintained the status quo well beyond the contractual period authorizing bargaining. . . . [T]here is no assertion or evidence that the parties agreed to an extension of time to allow the Union to submit proposals after the 15-day period. Thus, there was nothing further to bargain and the Respondent had no obligation to maintain the status quo until a non-existent bargaining obligation was concluded.

The court disagreed, finding that FLRA's conclusion rested on an implausible interpretation of the CBA. It interpreted section 2B of the contract as follows:

This provision clearly requires the Union to submit an opening proposal within 15 days, and the Union met this requirement with its August 31 submission. But Section 2B cannot reasonably be interpreted to require the Union to put all possible proposals on the table within that brief period, or to foreclose negotiation of any proposal submitted thereafter. . . .

In addition to departing from the CBA's express terms, the Authority's reading of the CBA would lead to bizarre results. It appears to lock the Union into its initial bargaining position by permitting the agency to ignore as untimely any subsequent expression amplifying, supplementing, or clarifying that initial proposal. And it would effectively prevent the Union from developing proposals based on accurate information properly and timely requested from, but not promptly delivered by, the agency. The agency would need only delay its response to the Union's request for information until the 15-day period had elapsed--as the Medical Center did in this case--in order to avoid bargaining over any proposal submitted after that time. The agency would be rewarded, under this reading, for providing insufficient information when notifying the Union of proposed changes and for tardy responses to valid information requests. This cannot be the intended meaning of Article 11 of the CBA.

This case is unusual in that the outcome, at least with respect to the first charge, depends on how one interprets the agreement's provisions on midterm bargaining procedures.

Apart from that, we pass along to the reader some remarks the court made about sua sponte determinations.

When the Authority makes a sua sponte determination, the parties will not have had an opportunity to address the relevant issue. Nevertheless, §7123(c) precludes us from considering a pertinent objection if the petitioner has not raised the objection before the Authority in a request for reconsideration. See, e.g., United States Dep't of Commerce v. FLRA, 7 F.3d 243, 245-46 (D.C. Cir. 1993). An exception to this rule is recognized when a request for reconsideration would be "patently futile" in light of recent Authority decisions squarely addressing the issue in question. . . . The Union argues that a similar exception is warranted in the instant case, because the FLRA's dissenting member challenged the propriety of the Authority raising the §7106(b)(1) argument sua sponte, thus affording the Authority an opportunity to address the issue. . . .

We recently held that §10(e) of the National Labor Relations Act, 29 U.S.C. §160(e)--which is an analog of 5 U.S.C. §7123(c)--precluded us from considering an objection the petitioner did not raise in proceedings before the [NLRB], despite the fact that the same objection was raised by a dissenting member of the Board. . . . The relevant language of 29 U.S.C. §160(e) and 5 U.S.C. §7123(c) is virtually identical, and we see no reason to interpret the provisions differently in this context. . . . Accordingly, we find that the dissent below did not excuse the Union's failure to raise its objections in a request for reconsideration. [Emphases added.]