106
OTMConnor, J., dissenting
contrary to the goal of the FLRA: to promote "effective and efficient" Government, not Government stymied by perpetual bargaining. § 7101(b). Indeed, it was this realization that initially motivated the FLRA to reject the contention that the Federal Labor Statute contained a duty to bargain midterm. See Internal Revenue Service, 17 F. L. R. A. 731, 736-737 (1985) (observing that midterm bargaining would cause continuous bargaining on an issue-by-issue basis).
A duty to bargain midterm was also excluded from the Statute because, in the context of the no-strike regime of federal labor relations, it would leave the agency-employer at an unfair disadvantage. In the NLRA context, the union that wants to obtain a midterm modification or supplement from an employer who is dead set against it must pay the price of a strike that is costly to it and its members. In the context of the Federal Labor Statute, the union that wants to obtain a midterm modification or supplement need only bargain to an impasse and then hope that the Federal Service Impasses Panel will give it all (or at least some) of what it has requested. Demanding unreciprocated additional benefits is cost free. Thus, a midterm bargaining requirement might motivate a union to "hold [a] matter off until the term agreement is done[,]. . . initiate the proposal as part of a single-issue negotiation," and, if an impasse results, force the agency to arbitrate. Ferris, Union-Initiated Mid-Term Bargaining: A Catalyst in Reshaping Conflict Patterns, 5 Negotiation J. 407, 411-412 (Oct. 1989). Again, it is obvious that this incentive structure does not promote "effective and efficient" Government. § 7101(b). Given the language and structure of the Federal Labor Statute, the context in which this language is used and the differences between the Statute and the NLRA, I would hold that the Federal Labor Statute plainly, and justifiably, does not impose a general duty to bargain midterm.
The FLRA argues, in the alternative, that even if the Federal Labor Statute does not impose a general obligation to
Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: October 4, 2007