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.
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