46 FLRA 103
46 FLRA NO. 13
U.S. Dept. of Transportation and Federal Aviation Administration and
Professional Airways Systems Specialist, Case Nos. 3-CA-70647-1-2,
3-CA-70648-1-2, 3-CA-70649-1-2, 3-CA-70650-1-2, 3-CA-70651-1-2 (40 FLRA
690) (Decided October 16, 1992)
UNFAIR LABOR PRACTICE
COURT REMAND
FLRA REMAND TO ADM. LAW JUDGE (ALJ)
This case came before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit in
Professional Airways Systems Specialists Division, District No. 1 --
MEBA/NMU v. FLRA, No. 91-1310 (D.C. Cir. June 22, 1992) (mem.; per
curiam) (PASS v. FLRA). The Authority remanded the complaint to the
Chief Administrative Law Judge for further proceedings.
The Authority found that the record was not sufficient to provide a
factual basis for conclusions as to the extent to which a status quo
ante remedy would be appropriate. The Authority noted that a factual
record should be developed to permit a determination as to whether
status quo ante relief would be inappropriate if applied to a particular
job category.
Case Nos. 3-CA-70647-1-2, 3-CA-70648-1-2, 3-CA-70649-1-2,
3-CA-70650-1-2, 3-CA-70651-1-2, (40 FLRA 690 (1991))
U.S. DEPARTMENT OF TRANSPORTATION AND FEDERAL AVIATION ADMINISTRATION
(Respondents)
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS, MEBA, AFL-CIO
(Charging Party)
October 16, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit in
Professional Airways Systems Specialists Division, District No. 1 --
MEBA/NMU v. FLRA, No. 91-1310 (D.C. Cir. June 22, 1992) (mem.; per
curiam) (PASS v. FLRA). For the following reasons, we conclude that the
complaint must be remanded to the Chief Administrative Law Judge /1/ for
further proceedings.
In the prior decision in this case, the Authority concluded, among
other things, that Respondent Federal Aviation Administration (FAA) had
violated section 7116(a)(1) and (5) of the Statute by unilaterally
implementing DOT Order 3910.1, Drug-Free Departmental Workplace, without
completing bargaining with the Professional Airways Systems Specialists,
MEBA, AFL-CIO, (PASS) the exclusive representative of its employees. In
that decision, the Authority concluded that a status quo ante remedy was
not appropriate. The Respondents did not sseek review of the
Authority's decision. The Charging Party sought review of the
Authority's decision insofar as the Authority refused to order status
quo ante relief. /2/ On appeal, the court, citing National Treasury
Employees Union v. FLRA, 910 F.2d 964, 966-67 (D.C. Cir. 1990) (en banc)
(NTEU v. FLRA), noted that deference is due an administrative agency's
choice of remedy, but stated:
In cases such as this one, however,
where an agency has taken unilateral action that disturbs the
status quo and has illegally refused to give a union an
opportunity to bargain over the decision (or its impact), a
stronger case can be made for the proposition that the Authority .
. . should restore the status quo ante in a remedial order . . . .
That does not necessarily mean that the Authority must employ
such a remedy as a matter of law, but in such a case it would
surely bear the burden of explaining why it did not. (NTEU V.
FLRA) at 969. We conclude that the Authority did not provide an
adequate explanation for its decision to deny status quo ante
relief.
PASS v. FLRA at 3.
In reaching this conclusion, the court rejected the Authority's
finding that FAA had a particularly urgent need to ensure a drug-free
workplace as not "supported by substantial evidence on the record." PASS
v. FLRA at 3. Additionally, the court characterized this finding as
inconsistent with the concept that bargaining was required prior to the
implementation of the random drug testing program. The court continued:
If the Authority should on remand maintain its view that urgent
considerations of safety require the continuation of the testing
program, it must provide a proper factual basis for its
conclusion. The Authority has discretion to distinguish between
different job categories -- for instance, pilots versus
technicians or inspectors -- in deciding whether status quo ante
relief is appropriate. Cf. National Fed'n of Fed. Employees v.
Cheney, 884 F.2d 603, 610-11 (D.C. Cir. 1989). The Authority also
may consider the possibility, suggested by PASS at oral argument,
that a time limit be imposed on the bargaining process.
PASS v. FLRA at 4.
The record before us is not sufficient to provide a factual basis for
conclusions as to the extent to which a status quo ante remedy would be
appropriate. In particular, the record does not contain sufficient
facts that permit a determination on whether, and to what extent,
distinctions should be made between different job categories with regard
to the imposition of a status quo ante remedy. Accordingly, we remand
this case to the Chief Administrative Law Judge for further processing.
A factual record should be developed that permits a determination as to
whether status quo ante relief would be inappropriate if applied to a
particular job category. Specifically, this record should include
information on the nature of the work performed by bargaining unit
employees who are in the job categories that are subject to random drug
testing under DOT Order 3910.1 and the relationship between work
performance by those employees and aviation safety. Based on that
record, a recommended order should be submitted to the Authority. /3/
The complaint is remanded to the Chief Administrative Law Judge for
further proceedings consistent with this decision.
(1) The Judge who conducted the hearing in this case is no longer
with the Authority.
(2) The Charging Party also challenged the Authority's failure to
grant make-whole relief and the dismissal of the complaint against
Respondent Department of Transportation. The court affirmed the
Authority's failure to grant make-whole relief and its determination
that Respondent Department of Transportation did not violate the Statute
as alleged.
(3) In light of the passage of time since the occurrence of the
unfair labor practice, we encourage the parties to come to a settlement
of the remedial issue or to enter into any stipulations of fact that
would facilitate the prompt resolution of this case.
46 FLRA 61
46 FLRA NO. 4
AFGE, Local 2142 and U.S. Dept. of Army, Corpus Christi Army Depot,
Corpus Christi, Texas (Acheson, Arbitrator), Case No. 0-AR-2268 (Decided
October 6, 1992)
7122(a)
5 C.F.R. Section 2425.1(b)
5 C.F.R. Section 2429.22
FPM chapter 335, subchapter 1-5(a)(1) and 5 C.F.R. Section
335.102(f)(1)
ARBITRATION EXCEPTION
TIMELINESS
NONFACT
ESSENCE
AWARD CONTRARY TO REGULATIONS
TEMPORARY PROMOTIONS
An employee filed a grievance challenging the Agency's failure to
temporarily promote him during the time he performed higher-graded
duties. The Arbitrator sustained the grievance, in part, and ordered a
make-whole remedy for a certain period of time. The Authority concluded
that the Union's exceptions provided no basis for finding the award
deficient.
Preliminarily, the Authority concluded that the Union's exceptions
were timely. The Authority then concluded that the award was not based
on a nonfact.
The Authority construed the Union's argument that the Arbitrator's
award violated the parties' collective bargaining agreement as a
contention that the award failed to draw its essence from the agreement.
The Authority found, however, that the Union did not demonstrate that
the award failed to draw its essence from the agreement. Lastly, the
Authority concluded that the award was not contrary to regulations,
specifically FPM chapter 335, subchapter 1-5(a)(1) and 5 C.F.R. Section
335.102(f)(1). The Authority noted that these regulations provide that,
unless otherwise specifically authorized by the Office of Personnel
Management, agencies may temporarily promote employees for no more than
2 years. However, the Authority concluded that the Union had not
established how the Arbitrator's determination that the grievance in
this case covered only the period June 4, 1990, to November 19, 1990,
was in any manner inconsistent with these regulations.
Case No. 0-AR-2268
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2142
(Union)
U.S. DEPARTMENT OF ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI,
TEXAS
(Agency)
October 6, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on exceptions to an award of
Arbitrator David R. Acheson filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Agency filed an
opposition to the Union's exceptions.
An employee filed a grievance challenging the Agency's failure to
temporarily promote him during the time he performed higher-graded
duties. The Arbitrator sustained the grievance, in part, and ordered a
make-whole remedy for a certain period of time.
For the following reasons, we conclude that the Union's exceptions
provide no basis for finding the award deficient. Accordingly, we will
deny the exceptions.
According to the Arbitrator, the grievant, a WG-5 employee, was
detailed to a WG-7 position on June 4, 1990, and performed WG-7 duties
until November 19, 1990, when the Agency directed that the assignment be
terminated. The grievant filed a grievance alleging that the WG-7
assignment did not end on November 19, 1990, and requesting WG-7
compensation for all the time he spent performing higher-graded duties.
In response, the Agency acknowledged that the grievant had performed
WG-7 duties without proper documentation. The Agency offered to detail
the grievant, retroactively, from June 4 until September 1, 1990, and
temporarily promote the grievant to WG-7 from September 2 to November
19, 1990. When the grievance was not resolved, it was submitted to
arbitration.
The Arbitrator framed the issues as follows:
1. Was the remedy provided by the Agency for the stipulated
contract violation proper?
2. Can the Arbitrator properly consider the allegations of the
Union that assignment to WG-07 duties continued beyond the
substance of this grievance?
Award at 7.
As to the first issue, the Arbitrator determined that, consistent
with the parties' collective bargaining agreement, the Agency properly
detailed the grievant and converted the detail to a temporary promotion
on the 91st day of the detail. According to the Arbitrator, in the
absence of a "punitive damages provision in the contract for
management('s) deliberate or inadvertent violation of the provisions of
the Collective Agreement, this is the maximum remedy available." Id. at
9. As his award, the Arbitrator stated that the Agency provided the
"maximum remedy possible to the (g)rievant," and that "(t)he grievant
should be . . . made whole for all time worked at the WG-07 level during
the time frame, June 4, 1990, through November 19, 1990." Id. at 10.
With respect to the second issue, the Arbitrator concluded that the
grievance was "limited to the issue of proper remedy . . . for the
period of June 4, 1990 until November 19, 1990." Id. Accordingly, the
Arbitrator stated that "(t)he grievance . . . to cover ongoing
assignments beyond November 19, 1990 is denied." Id. The Arbitrator
noted that the Union could file a "new grievance() if a dispute exists
as to the (g)rievant's ongoing improper assignments." Id.
A. Union
The Union contends that the Arbitrator incorrectly "limit(ed) the
period of time" that the grievance covered. Exceptions at 1. According
to the Union, November 19, 1990, is "not the limit of the . . .
grievance" and the Arbitrator "heard unrefuted testimony" and "accepted
documented evidence" that the grievant was assigned higher-graded duties
after that date. Id. at 1-2.
The Union also contends that the award is contrary to the parties'
collective bargaining agreement, Federal Personnel Manual (FPM) chapter
335, subchapter 1-5(a)(1), and 5 C.F.R. Section 335.102(f)(1). In this
connection, the Union argues that the Agency's violations of the
parties' agreement constituted an unjustified and or unwarranted
personnel action within the meaning of the Back Pay Act. The Union
asserts that, in view of the Agency's violations of the parties'
agreement as well as law and regulation, the Arbitrator should have
awarded the grievant a temporary position, with backpay and interest,
from November 19, 1990 to July 16, 1991.
B. Agency
The Agency contends that the Union's exceptions are untimely. The
Agency also contends that the Union has not "established that the
(a)ward (is) contrary to any law, rule, or regulation." Opposition at 1.
A. The Exceptions Are Timely
Under section 2425.1(b) of the Authority's Rules and Regulations, the
time limit for filing exceptions to an arbitration award is 30 days
beginning on the date the award is served on the filing party. 5 C.F.R.
Section 2425.1(b). Absent evidence to the contrary, the date of an
arbitration award is presumed to be the date of service. See U.S.
Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and
International Association of Machinists and Aerospace Workers, Local 39,
42 FLRA 322, 326 (1991). If the award is served by mail, 5 days are
added to the period for filing exceptions to the award. 5 C.F.R.
Section 2429.22.
In this case, the Union established that the Arbitrator's award was
served on it by mail on March 9, 1992. Therefore, any exception to the
award had to be filed with the Authority no later than April 13, 1992,
to be considered timely. 5 C.F.R. Sections 2425.1(b), 2429.21 and
2429.22. As the Union's exceptions were filed (postmarked) on April 7,
1992, they are timely.
B. The Award Is Not Based on a Nonfact
We construe the Union's assertion that the Arbitrator
"misinterpreted" November 19, 1990, as the latest date encompassed by
the grievance as a contention that the award is based on a nonfact. To
establish that an award is based on a nonfact, the party making the
allegation must demonstrate that the central fact underlying the award
is clearly erroneous, but for which a different result would have been
reached by the arbitrator. For example, U.S. Department of the Army,
Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North
Carolina and American Federation of Government Employees, Local 1770, 44
FLRA 1080, 1083 (1992) (Fort Bragg).
The union has not demonstrated that the Arbitrator's conclusion that
the grievance covered only the period from June 4 to November 19, 1990,
is based on a central fact that is clearly erroneous. Rather, as the
Arbitrator based his finding on the record before him, we conclude that
the Union's claim constitutes mere disagreement with the Arbitrator's
evaluation of the evidence and his findings based thereon. Such
disagreement provides no basis for finding an award deficient. See, for
example, Fort Bragg, 44 FLRA at 1083.
C. The Award Draws Its Essence From the Parties' Collective
Bargaining Agreement
We construe the Union's argument that the Arbitrator's award violates
the parties' collective bargaining agreement as a contention that the
award fails to draw its essence from the agreement. To demonstrate that
an award is deficient on this ground, a party must show that the award:
(1) cannot in any rational way be derived from the agreement; (2) is so
unfounded in reason and fact, and so unconnected with the wording and
purpose of the agreement as to manifest an infidelity to the obligation
of the arbitrator; (3) evidences a manifest disregard for the
agreement; or (4) does not represent a plausible interpretation of the
agreement. For example, U.S. Department of the Air Force, Oklahoma City
Air Logistics Center, Tinker Air Force Base, Oklahoma and American
Federation of Government Employees, Local 916, 45 FLRA 283, 286 (1992)
(Oklahoma, City ALC).
The Union has not demonstrated that the award fails to draw its
essence from the parties' agreement under any of these tests. The Union
has not shown that the Arbitrator interpreted the agreement in a manner
that was irrational, implausible or unconnected with the wording of the
agreement. In fact, the Union has not cited any provision of the
parties' agreement with which the award allegedly conflicts. Instead,
we conclude that the Union's contention constitutes mere disagreement
with the Arbitrator's interpretation and application of the parties'
agreement and, as such, provides no basis for finding the award
deficient. For example, id.
D. The Award Is Not Contrary to Regulations
We reject the Union's contention that the award is inconsistent with
FPM chapter 335, subchapter 1-5(a)(1) /1/ and 5 C.F.R. Section
335.102(f)(1). /2/ These regulations provide that, unless otherwise
specifically authorized by the Office of Personnel Management, agencies
may temporarily promote employees for no more than 2 years. However,
the Union has not established how the Arbitrator's determination that
the grievance in this case covered only the period June 4, 1990, to
November 19, 1990, is in any manner inconsistent with these regulations.
Therefore, we conclude that the Union's contention constitutes mere
disagreement with the Arbitrator's findings of fact and conclusions
based thereon. As such, the exceptions provides no basis for finding
the award deficient.
The Union's exceptions are denied.
(1) FPM Chapter 335, subchapter 1-5.a.(1)(a) provides in pertinent
part that:
Temporary promotions must be for a definite period of 1 year less,
but may be extended for a definite period not to exceed 1
additional year . . . .
(2) 5 C.F.R. Section 335.102(f)(1) provides in pertinent part that an
agency may:
Except as otherwise specifically authorized by OPM, temporarily
promote an employee to meet a temporary need for a definite period
of 1 year or less and extend such a promotion for a definite
period not to exceed 1 additional year.
46 FLRA 97
46 FLRA NO. 11
U.S. Dept. of Veterans Affairs Medical Center, Kerrville, Texas and
AFGE, Local 2281, Case No. 0-AR-2191 (45 FLRA 457) (Decided October 16,
1992)
ARBITRATION
RECONSIDERATION
EXTRAORDINARY CIRCUMSTANCES
The Agency filed a request for reconsideration of the Authority's
decision in 45 FLRA 457 (1992). The Authority found that the Agency
failed to establish that extraordinary circumstances existed warranting
reconsideration of its decision and denied the request.
The Authority concluded that the arguments in the motion for
reconsideration were nothing more than disagreement with its findings
and conclusions in 45 FLRA 457 and were, therefore, merely an attempt to
relitigate the merits of its decision.
Case No. 0-AR-2191, (45 FLRA 457 (1992))
U.S. DEPARTMENT OF VETERANS AFFAIRS, MEDICAL CENTER, KERRVILLE, TEXAS
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2281
(Union)
October 16, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on the Agency's motion for
reconsideration of the Authority's decision in 45 FLRA 457 (1992). The
Union did not file an opposition to the Agency's motion. Because the
Agency fails to establish that extraordinary circumstances exist which
warrant reconsideration of our decision, we will deny the motion.
The Arbitrator held that the Agency's Medical Center had failed to
make available at its facilities a sufficient number of adequate outdoor
smoking shelters, as required by a decision and order of the Federal
Service Impasses Panel (the Panel) and as incorporated into the parties'
collective bargaining agreement pursuant to section 7119(c)(5)(C) of the
Federal Service Labor-Management Relations Statute (the Statute). As a
remedy, the Arbitrator directed the Agency to: (1) enclose two
additional outdoor shelters that can accommodate twenty persons at one
time and provide these two shelters with heating and ventilation
equipment; and (2) redesignate part of its canteen as a smoking area
until it provides the two additional adequate smoking shelters and gives
three days notice that it has done so.
Before the Authority, the Agency contended that the Arbitrator erred
in concluding that the outdoor shelters were not adequate under the
Panel's precedent. Specifically, the Agency argued that outdoor smoking
shelters need to provide only a modicum of protection to the user from
local weather conditions. The Agency also contended that the Arbitrator
exceeded his authority in ordering a remedy that required a return to
indoor smoking pending the required modification of the outdoor
shelters. With regard to the latter contention, the Agency argued that
because of the health risks of smoking, it would be against public
policy to require a return to indoor smoking when it already provides
sixteen outdoor smoking shelters, "some of which are fully enclosed,
ventilated and heated." 45 FLRA at 464.
The Authority concluded that the award was not deficient in its
formulation and application of a standard of adequacy with respect to
the outdoor smoking shelters, and that the Arbitrator acted within his
remedial discretion in ordering a return to indoor smoking as an interim
measure pending the modification of the outdoor shelters. The Authority
found that it was not against public policy to require the parties to
abide by the results of a dispute submitted to the Panel.
The Agency contends that the Authority's decision was
"unconscionable" in ordering a return to indoor smoking because "(a)
return to smoking indoors, for any period of time, is a retrogressive
and antisocial act which flaunts (sic) government-wide policy,
jeopardizes . . . accreditation of the (Medical Center), and subjects
patients, employees, visitors, and America's veterans to poisonous
(environmental tobacco smoke)." Motion for Reconsideration at 2. The
Agency further contends that it is "irrational" to permit the Arbitrator
to use a standard of "full or complete protection(,)" rather than
"modicum or measure of protection" to determine the adequacy of the
outdoor smoking shelters. Id. at 3. Finally, the Agency argues that by
requiring that it fully enclose, heat, and ventilate two of the sixteen
outdoor shelters, the Authority is enforcing an award that "force(s) the
government to waste tens of thousands of taxpayers' dollars to poison
veterans employees, and patents(.)" Id. at 4. The Agency claims that
because those outdoor shelters are attached to the Medical Center, full
enclosure would bring environmental tobacco smoke back into the Medical
Center.
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish the existence of "extraordinary circumstances"
to request reconsideration of a decision of the Authority. We conclude
that the Agency has not established extraordinary circumstances within
the meaning of section 2429.17 to warrant reconsideration of our
decision in 45 FLRA 457.
The Agency again argues, as it did in its exceptions to the
Arbitrator's award, that the award is against public policy insofar as
it orders the resumption of indoor smoking for any period of time, and
that the Arbitrary applied the wrong standard in assessing the adequacy
of the outdoor shelters. In 45 FLRA 457, we addressed and rejected
these arguments. Accordingly, we conclude that these arguments in the
motion for reconsideration constitute nothing more than disagreement
with our findings and conclusions in 45 FLRA 457 and are, therefore,
merely an attempt to relitigate the merits of our decision. See U.S.
Department of the Interior, Bureau of Reclamation, Great Plains Region
and International Brotherhood of Electrical Workers, Local 1759, 43 FLRA
314 (1991).
The Agency also claims that it would waste money and endanger the
health of its employees, patients, and others if it complies with the
requirement of the award that it fully enclose two of the outdoor
shelters. We conclude that this argument does not raise extraordinary
circumstances that warrant reconsideration of our decision. As we
concluded in 45 FLRA 457, the Arbitrator's formulation and application
of a standard of adequacy was not deficient. Consequently, his award is
not deficient insofar as it applies the standard to require two
additional enclosed shelters. Rather, it merely requires the Agency to
abide by the Panel decision, as interpreted by the Arbitrator. With
regard to the Agency's contention that enclosing the shelters will cause
smoke to enter the Medical Center, we note that, as the Agency conceded
before the Arbitrator, some of its existing outdoor shelters are fully
enclosed, apparently without endangering the health of the occupants of
the Medical Center. We also note that the award permits the parties to
agree to enclose different outdoor shelters than those designated by the
Arbitrator, which allows some flexibility in creating adequate outdoor
smoking shelters without exposing nonsmokers to dangerous fumes.
The Agency's motion for reconsideration is denied.
46 FLRA 93
46 FLRA NO. 10
AFGE, Local 916 and U.S. Dept. of the Air Force, Oklahoma City Air
Logistics Center, Tinker Air Force Base, Oklahoma (Taylor, Arbitrator),
Case No. 0-AR-2272 (Decided October 15, 1992)
7122(a)
FPM Supplement 351-1, subchapter S5-3
ARBITRATION EXCEPTION
SUPPLEMENTAL AWARD
EMPLOYEE ASSIGNMENT
In a supplemental award, the Arbitrator clarified his previous award
by ordering the Agency to assign the grievant to a particular position.
The Authority concluded that the award was deficient. The Authority
concluded that the supplemental award was inconsistent with FPM
Supplement 351-1, subchapter S5-3. The Authority found that the
Arbitrator had assigned the employee to a WG-5 position when there was a
WG-8 position available.
Case No. 0-AR-2272
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916
(Union)
U.S. DEPARTMENT OF THE AIR FORCE, OKLAHOMA CITY AIR LOGISTICS CENTER,
TINKER AIR FORCE BASE, OKLAHOMA
(Agency)
October 15, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to a supplemental
award of Arbitrator Robert L. Taylor filed by the Agency under section
7122(a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Union did not file an opposition to the exception.
In his supplemental award, the Arbitrator clarified his previous
award by ordering the Agency to assign the grievant to a particular
position. For the following reasons, we conclude that the award is
deficient. Accordingly, we will set aside the award.
The underlying grievance concerned the reassignment of the grievant
from a WG-8 testing equipment operator position to a WG-8 sheet metal
worker position as a result of a RIF. The grievant maintained that she
should have been assigned to a WG-8 aircraft mechanic position. A
grievance was filed over the matter and, when it was unresolved, it was
submitted to arbitration. The Arbitrator sustained the grievance and
awarded the grievant an aircraft mechanic position.
The Agency filed exceptions to the award and claimed that, among
other things, the award was inconsistent with FPM Supplement 351-1,
subchapter S5-3 /1/ and Air Force Regulation (AFR) 40-351. /2/ In
American Federation of Government Employees, Local 916 and U.S.
Department of the Air Force, Oklahoma City Air Logistics Center, Tinker
Air Force Base, Oklahoma, 44 FLRA 247, 248 (1992) (Tinker Air Force
Base), we concluded that, under FPM Supplement 351-1, subchapter S5-3,
the grievant could not properly have been assigned to an aircraft
mechanic position at a level lower than WG-8 because a WG-8 sheet metal
worker position was available at the time of reassignment. However, we
were unable to determine whether the Arbitrator awarded the grievant a
WG-5 or a WG-8 aircraft mechanic position. Accordingly, we remanded the
case to the parties for resubmission to the Arbitrator for
clarification.
In his supplemental award, the Arbitrator determined that, at the
time of the grievant's reassignment, there were no vacant WG-8 aircraft
mechanic positions. However, the Arbitrator also determined that there
were vacant aircraft mechanic positions at the WG-5 level "to which (the
grievant) could have been assigned . . . ." Supplemental Award at 2.
The Arbitrator noted that other employees, who were junior to the
grievant, had been assigned to WG-5 aircraft mechanic positions and
stated that it was his intention to accord the grievant "the right to
claim the same job to which (the other employees) were assigned." Id. at
3.
As relevant here, the Agency argues that, because the Arbitrator
clarified his previous award to require the Agency to assign the
grievant to a WG-5 position, the supplemental award is inconsistent with
FPM Supplement 351-1, subchapter S5-3 and AFR 40-351. /3/ According to
the Agency, these regulations entitle an employee affected by a RIF to
assignment to the highest-graded available position for which the
employee is qualified at the time of the assignment. The Agency argues
that, as a WG-8 sheet metal worker position was available at the time of
the grievant's assignment, a requirement that the grievant be assigned
to a WG-5 position is contrary to the FPM Supplement and its regulation.
In his supplemental award, the Arbitrator noted that, at the time of
the grievant's assignment, there were no WG-8 aircraft mechanic
positions available. The Arbitrator also noted, however, that a number
of aircraft mechanic positions were available at the WG-5 level and that
other employees had been assigned to the WG-5 positions. The Arbitrator
specifically stated his "intention" to accord the grievant "the same
job" as the other employees. Supplemental Award at 3. In view of these
findings and conclusions, and as there is no assertion to the contrary
in the record before us, we conclude, in agreement with the Agency, that
the Arbitrator awarded the grievant a WG-5 aircraft mechanic position.
In Tinker Air Force Base, we noted that, as a WG-8 sheet metal worker
position was available at the time of the grievant's reassignment, she
could not be assigned to a lower level position. We also stated that,
if the Arbitrator awarded the grievant a WG-5 position, the award would
be deficient under FPM Supplement 351-1, subchapter S5-3. We conclude
that the Arbitrator awarded the grievant a WG-5 aircraft mechanic
position. Consequently, we conclude also that the supplemental award is
inconsistent with FPM Supplement 351-1, subchapter S5-3.
FPM Supplement 351-1, subchapter S5-3 is a Government-wide
regulation. For example, Overseas Education Association Inc. and
Department of Defense, Office of Dependents Schools, 22 FLRA 351, 354
(1986), aff'd sub nom. Overseas Education Association, Inc. v. FLRA, 827
F.2d 814 (D.C. Cir. 1987). Accordingly, the award is deficient under
section 7122(a)(1) of the Statute. In view of this decision, we do not
address the Agency's argument that the award also is inconsistent with
an Agency regulation.
The Arbitrator's supplemental award is set aside.
(1) FPM Supplement 351-1, subchapter S5-3 provides in pertinent part:
b. More than one available position. When more than one
available position will satisfy an employee's assignment right,
the employee is entitled to the position with the highest
representative rate. . . .
(2) The Agency states that AFR 40-351, paragraph 7b, provides that
"'an employee is entitled to the position that represents the best offer
in terms of grade at or below his or her current grade or representative
rate.'" Exceptions to the Original Award at 4.
(3) The Agency also argues, in the alternative, that if the
Arbitrator awarded the grievant a WG-8 aircraft mechanic position, the
supplemental award is deficient on other grounds. In view of our
decision, we do not address the Agency's alternative arguments.
46 FLRA 90
46 FLRA NO. 9
AFGE, Local 2017 and U.S. Dept. of the Army, Army Signal Center and
Fort Gordon, Fort Gordon, Georgia, Case No. 0-AR-2232 (45 FLRA 817 and
45 FLRA 1182) (Decided October 15, 1992)
7122(a)
5 C.F.R. Section 2429.17
ARBITRATION
RECONSIDERATION
EXTRAORDINARY CIRCUMSTANCES
This matter came before the Authority on the Union's request for
reconsideration of the Authority's decision in 45 FLRA 817, request for
reconsideration denied, 45 FLRA 1182.
The Authority concluded that the Union failed to establish that
extraordinary circumstances existed warranting reconsideration.
Accordingly, the Union's request was denied.
Case Nos. 0-AR-2232, (45 FLRA 817 (1992)), (45 FLRA 1182 (1992))
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2017
(Union)
U.S. DEPARTMENT OF THE ARMY, ARMY SIGNAL CENTER AND FORT GORDON, FORT
GORDON, GEORGIA
(Agency)
October 15, 1992
Before Chairman McKee and Member Talkin. /*/
This matter is before the Authority on the Union's request for
reconsideration of our decision in 45 FLRA 817, request for
reconsideration denied, 45 FLRA 1182. The Agency did not file an
opposition to the Union's request.
We conclude that the Union has failed to establish that extraordinary
circumstances exist warranting reconsideration. Accordingly, we will
deny the Union's request.
1182
In 45 FLRA 817, we denied the Union's exceptions to the Arbitrator's
award. The Arbitrator denied the Union's grievance that alleged that
the Agency incorrectly evaluated the grievant's status in determining
his rights as a civilian employee when the Agency conducted a
reduction-in-force (RIF) and that the Agency failed to give appropriate
weight to the grievant's military service, including his status as a
disabled veteran. We concluded that the Union's assertions that the
Arbitrator was biased and that the award was not based on law and
regulation provided no basis for finding the award deficient.
In 45 FLRA 1182, we rejected the Union's argument that our decision
was contrary to applicable laws, rules, and regulations. We found that
the Union's request for reconsideration was merely an attempt to
relitigate the merits of our decision in 45 FLRA 817. Because the
Union's request did not establish extraordinary circumstances warranting
reconsideration of the decision, we denied the request.
The Union contends that both our decision and order are deficient
because they are contrary to law, specifically 5 U.S.C. Sections 2108,
3501, and 3502. According to the Union, 5 U.S.C. Sections 2108, 3501,
and 3502 "dictate their own definitions, applications(,) meanings, uses,
and purposes." Request for Reconsideration at 1. The Union argues that
the definitions for "disabled veteran" and "preference eligible" found
in 5 U.S.C. Section 2108 should have been applied by the Agency to
determine the grievant's rights as a civilian employee when the Agency
conducted a RIF. The Union also argues that, by using the definitions
of those terms found in the Dual Compensation Act of 1964, 5 U.S.C.
Sections 3502 and 3502, instead of the definitions found in 5 U.S.C.
Section 2108, the Agency and the Arbitrator failed to give appropriate
weight in the RIF to the grievant's military service, including his
status as a disabled veteran.
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish extraordinary circumstances to request
reconsideration of an Authority decision. The Union has not established
extraordinary circumstances within the meaning of section 2429.17 to
warrant reconsideration of the Authority's decision in 45 FLRA 817 and
the Authority's denial of the Union's previous request for
reconsideration in 45 FLRA 1182. Therefore, we will deny the request.
See, for example, Department of Health and Human Services, Health Care
Financing Administration, 44 FLRA 145 (1992); Michigan Air National
Guard, Selfridge ANG Base, Michigan and The Association of Civilian
Technicians, Michigan State Council, 34 FLRA 890 (1990).
The Union's request for reconsideration is denied.
(*) Member Armendariz has recused himself from participation in the
resolution of this case because he is a life member of the Disabled
American Veterans.
46 FLRA 88
46 FLRA NO. 8
NAGE, Local R12-150 and U.S. Dept. of Defense, National Guard Bureau,
State of California, Office of the Adjutant General, Case No. 0-NG-2088
(Decided October 7, 1992)
5 C.F.R. Section 2424.3
5 C.F.R. Section 2429.27(d)
5 C.F.R. Section 2429.23(d)
5 C.F.R. Section 2429.24(a)
NEGOTIABILITY DETERMINATION
TIMELINESS
PLACE TO FILE
The Authority dismissed the Union's petition for review. The Union's
petition for review was not filed in the Authority's Docket Room within
the prescribed time limit. The Authority noted that a petition for
review of an agency's allegation of nonnegotiability cannot be filed
with a Regional Office of the Authority, but must be filed with the
Authority's Docket Room.
The Union's petition for review, dated September 2, 1992, was mailed
to the Authority's San Francisco Regional Office. The Regional Office
received the petition and forwarded it to the Authority's Docket Room.
The Union's petition was received in the Authority's Docket Room on
September 15, 1992. Accordingly, the Union's petition for review is
considered filed on September 15, 1992, the date it was received in the
Authority's Docket Room.
In order for the Petition to have been timely, it had to be either
postmarked by the U.S. Postal Service or received in person at the
Authority's Docket Room no later than August 19, 1992.
Case No. 0-NG-2088
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-150
(Union)
U.S. DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, STATE OF
CALIFORNIA, OFFICE OF THE ADJUTANT GENERAL
(Agency)
October 7, 1992
The Union has filed a petition for review of negotiability issues in
the above-captioned case. For the reasons set out below, the Union's
petition must be dismissed.
The time limit for filing a petition for review of negotiability
issues is 15 days after service on the Union of the Agency's allegation
of nonnegotiability. 5 C.F.R. Section 2424.3. The date of service is
the date the Agency's allegation is deposited in the U.S. mail or is
delivered in person. 5 C.F.R. Section 2429.27(d). The time limit may
not be extended or waived by the Authority. 5 C.F.R. Section
2429.23(d). Any document filed with the Authority must be filed in the
Authority's Docket Room in Washington, D.C. 5 C.F.R. Section
2429.24(a).
The Agency's written allegation of nonnegotiability is dated July 30,
1992. Presuming that the allegation was deposited in the U.S. mail on
that date, a petition for review of negotiability issues had to be
either postmarked by the U.S. Postal Service or received in person at
the Authority's Docket Room no later than August 19, 1992, in order to
be considered timely. 5 C.F.R. Sections 2424.3, 2429.21(b), and
2429.22.
A petition for review of an agency's allegation of nonnegotiability
cannot be filed with a Regional Office of the Authority, but must be
filed with the Authority's Docket Room. 5 C.F.R. Section 2429.24(a).
See The Association of Civilian Technicians and the Division of Military
and Naval Affairs, the State of New York, 32 FLRA 96 (1988).
The Union's petition for review, dated September 2, 1992, was mailed
to the Authority's San Francisco Regional Office. The Regional Office
received the petition and forwarded it to the Authority's Docket Room.
The Union's petition was received in the Authority's Docket Room on
September 15, 1992. Accordingly, the Union's petition for review is
considered filed on September 15, 1992, the date it was received in the
Authority's Docket Room.
The Union's petition for review was not filed in the Authority's
Docket Room within the prescribed time limit. Accordingly, as the time
limit for filing a petition for review may not be extended or waived by
the Authority, the Union's petition for review is dismissed.
For the Authority.
Alicia N. Columna
Director, Case Control Office
46 FLRA 86
46 FLRA NO. 7
U.S. Dept. of the Air Force, Tinker Air Force Base, Oklahoma and
AFGE, Local 916, Case No. 0-AR-2263 (45 FLRA No. 113) (Decided October
7, 1992)
7122(a)
5 C.F.R. Section 2429.17
ARBITRATION
RECONSIDERATION
TIMELINESS
EXTRAORDINARY CIRCUMSTANCES
The Union has filed a request for reconsideration of the Authority's
Decision issued September 8, 1992, in the above-captioned case. The
Authority dismissed the Union's request for reconsideration as untimely.
The Authority noted that the time limit for filing a request for
reconsideration of the Authority's decision is 10 days after the date
the Decision was served on the filing party. The date of service of the
Decision is the date it was issued and deposited in the U.S. mail:
September 8, 1992. Whenever a party is served by mail, 5 days are added
to the prescribed period for filing. 5 C.F.R. Section 2429.22.
Therefore, any request for reconsideration, in order to be considered
timely filed, had to be either postmarked by the U.S. Postal Service, or
received in person at the Authority no later than September 23, 1992. 5
C.F.R. Sections 2429.17, 2429.21(b) and 2429.22.
The Union's request for reconsideration was filed (postmarked) on
September 24, 1992. As such, it was untimely. The Authority also found
that the Union failed to establish, or allege, the existence of any
extraordinary circumstances which would warrant waiving the expired time
limit for filing its request for reconsideration. 5 C.F.R. Section
2429.23(b).
Case No. 0-AR-2263, (45 FLRA No. 113)
U.S. DEPARTMENT OF THE AIR FORCE, TINKER AIR FORCE BASE, OKLAHOMA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916
(Union)
October 7, 1992
The Union has filed a request for reconsideration of the Authority's
Decision issued September 8, 1992, in the above-captioned case. The
Union's request for reconsideration is untimely and must be dismissed.
In pertinent part, section 2429.17 of the Authority's regulations (5
C.F.R. Section 2429.17) provides:
2429.17 Reconsideration.
After a final decision or order of the Authority has been issued,
a party to the proceeding before the Authority who can establish
in its moving papers extraordinary circumstances for so doing may
move for reconsideration of such final decision or order. The
motion shall be filed within ten (10) days after service of the
Authority's decision or order. . . .
The time limit for filing a request for reconsideration of the
Authority's Decision is 10 days after the date the Decision was served
on the filing party. The date of service of the Decision is the date it
was issued and deposited in the U.S. mail: September 8, 1992. Whenever
a party is served by mail, 5 days are added to the prescribed period for
filing. 5 C.F.R. Section 2429.22. Therefore, any request for
reconsideration, in order to be considered timely filed, had to be
either postmarked by the U.S. Postal Service, or received in person at
the Authority no later than September 23, 1992. 5 C.F.R. Sections
2429.17, 2429.21(b) and 2429.22.
The Union's request for reconsideration was filed (postmarked) on
September 24, 1992. As such, it is untimely.
The Union has failed to establish, or allege, the existence of any
extraordinary circumstances which would warrant waiving the expired time
limit for filing its request for reconsideration. 5 C.F.R. Section
2429.23(b). Accordingly, the Union's request for reconsideration is
dismissed.
For the Authority.
Alicia N. Columna
Director, Case Control Office
46 FLRA 76
46 FLRA NO. 6
U.S. Dept. of the Army, Rock Island Arsenal, Rock Island, Illinois
and NAGE, Local R7-72 and NFFE, Case No. CH-AC-20004 (Decided October 7,
1992)
5 C.F.R. Section 2422.17(a)
PETITION FOR REVIEW
FILING PARTY
CONTINUITY OF REPRESENTATION
This case came before the Authority on an application for review
seeking review of the Regional Director's Decision and Order on Petition
for Amendment of Certification. The Regional Director found that the
change in affiliation was accomplished in a manner consistent with
required procedures. Therefore, the Regional Director granted the
requested change in the certification.
Preliminarily, NAGE argued that the petition should be dismissed
because it was improperly filed. Specifically at issue was the
application of section 2422.1(d) of the Authority's Rules and
Regulations, which provides in pertinent part that a petition for
amendment of certification "may be filed by an activity or agency or by
a labor organization which is currently recognized by the activity or
agency as an exclusive representative." NAGE Local R7-72 was the
currently recognized exclusive representative at the time the petition
was filed. NAGE asserts that the petition was filed by NFFE, rather
than by NAGE Local R7-72, as required by section 2422.1(d). NAGE
alleged that the filing was improper because the signature on the
petition was that of the person who was elsewhere identified as
"Membership Coordinator, National Federation of Federal Employees." The
Authority concluded that this was irrelevant. The petition clearly
stated that the petitioner was the acting vice president of the
incumbent, NAGE Local R7-72. Therefore, it complied with the
requirement in section 2422.1(d) that the petition be filed by the labor
organization that is the currently recognized exclusive representative.
The Authority concluded that the Regional Director's decision was
consistent with the standards established in Montrose, 3 FLRC 259, and
applied in numerous Authority decisions. First, the Authority agreed
with the Regional Director that the meeting was held at a time that was
convenient to unit members and with adequate advance notice.
The Authority further agreed with the Regional Director's finding
that the petition was supported by evidence of substantial continuity
between the union existing before and after the change in affiliation.
Case No. CH-AC-20004
U.S. DEPARTMENT OF THE ARMY, ROCK ISLAND ARSENAL, ROCK ISLAND,
ILLINOIS
(Agency)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-72
(Petitioner/Labor Organization) /1/
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(Labor Organization)
October 7, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on an application for review filed
by the National Association of Government Employees (NAGE), under
section 2422.17(a) of the Authority's Rules and Regulations seeking
review of the Regional Director's Decision and Order on Petition for
Amendment of Certification. The Regional Director found that the change
in affiliation that is the subject of this proceeding was accomplished
in a manner consistent with the required procedures established in
Veterans Administration Hospital, Montrose, New York 4 A/SLMR 858
(1974), review denied, 3 FLRC 259 (1975) (Montrose). Therefore, the
Regional Director granted the requested change in the certification.
The National Federation of Federal Employees, Local 2119 (NFFE or NFFE
Local 2119) filed an opposition to the application for review. /2/ For
the reasons set forth below, we deny the application for review.
The National Association of Government Employees Local R7-72 (NAGE
Local R7-72) was certified on December 1, 1983, as the exclusive
representative of a unit of employees at Rock Island Arsenal, Rock
Island, Illinois. The unit, as subsequently clarified, basically
includes all eligible general schedule (GS) non-professional employees.
/3/ There are approximately 650 employees in the unit. The petition
seeks to amend the certification by changing the designation of the
exclusive representative from NAGE Local R7-72 to NFFE Local 2119. NAGE
Local R7-72 also represents a separate certified unit of employees at
the same location consisting of approximately 70 Non-Appropriated Fund
(NAF) employees who work in the cafeteria.
There are approximately sixteen union members in the petitioned-for
unit, and ten members in the NAF unit. The regular union meetings for
both groups are held at the same time and place on the last Monday of
the month.
On September 19, 1991, a notice of a special meeting was mailed to
all members of NAGE Local R7-72, including employees in both the GS and
the NAF units. The notice stated that the purpose of the meeting was to
discuss and vote, by secret ballot, on the question of whether NAGE
Local R7-72 should change its affiliation from NAGE to NFFE for both the
GS and NAF units. The notice contained a list of the "essential impacts
of the affiliation vote," including matters concerning dues assessments,
terms and conditions of employment, local officers, representation at
national conventions and the constitution that would govern the local's
affairs. Enclosure to letter to Regional Director dated October 15,
1991, accompanying the petition. The special meeting was scheduled for
Monday, October 7, 1991, at 4 p.m. in the room where NAGE Local R7-72
held its regular monthly meetings.
Six members of Local R7-72 attended the meeting. Two of the
employees who attended are in the unit at issue. The remaining four are
in the NAF unit. During the meeting, members discussed the proposed
affiliation change. The discussion concerned such matters as dues and
the lack of certain benefits from NAGE, and lasted for approximately 30
minutes. Following the discussion, all six NAGE Local R7-72 members
present were given a ballot marked with two choices: "Yes, I vote to
change the affiliation to National Federation of Federal Employees" and
"No, I vote to keep the affiliation with National Association of
Government Employees." Regional Director's decision at 2-3. Each was
accompanied by a list of the "inherent choices" of the vote, including
matters concerning dues assessment, terms and conditions of employment,
local officers, representation at national conventions and the
constitution that would govern the Local's affairs. Enclosure to letter
to Regional Director dated October 15, 1991, accompanying the petition.
The ballot included information indicating that the proposed affiliation
involved both the GS unit and the NAF unit.
The voters separated themselves into various areas of the room and
marked the ballots in secret and individually. The ballots were folded,
placed together, and counted in view of those present. All six ballots
were cast in favor of affiliation with NFFE.
The Authority has held that in order to amend the designation of an
exclusive representative in an existing unit to reflect a change in
affiliation, procedures set forth in Montrose must be followed. Florida
National Guard, St. Augustine, Florida, 25 FLRA 728 (1987). See also
Union of Federal Employees, 41 FLRA 562 (1991); Florida National Guard,
St. Augustine, Florida, 31 FLRA 223 (1990). Thus, to assure that an
amendment of certification conforms to the desires of a union's
membership, four procedural criteria must be met, at a minimum:
(1) A proposed change in affiliation should be the subject of a
special meeting of the members of the incumbent labor
organization, called for this purpose only, with adequate advance
notice provided to the entire membership; (2) the meeting should
take place at a time and place convenient to all members; (3)
adequate time for discussion of the proposed change should be
provided, with all members given an opportunity to raise questions
within the bounds of normal parliamentary procedures; and (4) a
vote by the members of the incumbent labor organization on the
question should be taken by secret ballot, with the ballot clearly
stating the change proposed and the choices inherent therein.
Montrose, 4 A/SLMR at 860.
The Regional Director concluded that the change in affiliation was
accomplished in a manner consistent with the Montrose requirements. He
determined that adequate advance notice had been provided to all members
of the special meeting to discuss and vote on the proposed change in
affiliation. He found further that the meeting was held at a time and
place convenient to all members, and that adequate time was provided at
the meeting to discuss the proposed change.
The Regional Director specifically found that the ballot clearly
stated the change proposed and the choices inherent therein, although he
acknowledged that the special notice, the special meeting and the ballot
itself indicated that the election involved both the GS unit and the NAF
unit, but that the petition covers only the GS unit. The Regional
Director stated that
While the change in affiliation herein was accomplished in
conjunction with another unit, such fact, standing alone, was not
shown to be inconsistent with the Montrose procedures. As noted .
. . the Montrose procedures were followed with regard to the
petitioned(-)for unit.
Regional Director's decision at 3 n.*.
The fact that only two members from the unit involved in this case
attended and voted at the special meeting also was not viewed by the
Regional Director as a failure to comply with the Montrose procedures,
in view of his finding that there was adequate notice and that the
meeting was at a time and place convenient to the members. The Regional
Director noted that
there is no requirement under Montrose that a specific percentage
or number of members must cas(t) ballots in order for an
affiliation change to be effective. See U.S. Department of
Interior, Bureau of Indian Affairs, Rosebud, South Dakota, 34 FLRA
67 (1989) (Rosebud) (no requirement under the Statute that a
specified number of eligible voters must cast ballots in order for
representation election to be valid.)
Id.
Finally, the Regional Director concluded that there was "substantial
continuity" between the local union existing before and after the vote.
Id. at 4. In this regard, he noted that the Local's officers remained
and served as representatives in negotiated grievances and negotiation.
The Regional Director also noted that after the vote the parties
continued to honor the July 1991 negotiated agreement between the
Activity and NAGE Local R7-72, mediated two grievances with FMCS
assistance in November 1991, and made a joint submission to the Federal
Service Impasses Panel in a matter affecting the GS unit. In addition,
the Regional Director found that the Local continued to operate with the
same degree of autonomy as before the affiliation vote, and that there
was no evidence that NAGE at any higher level had taken any action to
change the relationship between the Activity and the Local. In summary,
the Regional Director found that "(t)here was no material change in the
Local's daily operation, autonomy or control of operation and it
continued as the representative of employees in various representational
matters." Id.
Accordingly, the Regional Director granted the petition to amend the
certification.
In its application for review, NAGE asserts that four findings of the
Regional Director raise substantial issues of law because of departures
from Authority precedent.
First, NAGE contends that the meeting was not held at a time
convenient for a majority of the members. In this regard, the
application notes that only six members attended the special meeting,
and that only two of the six, both of whom are officers of the Local,
are in the GS unit covered by the petition. NAGE argues that this
demonstrates that the time was not convenient for the members and that
the vote did not accurately represent the desires of the membership of
the GS unit.
A second claim made by NAGE is that members of the NAF unit did not
have "an adequate informed vote during the special meeting." Application
for review at 2. NAGE argues that, under Montrose and Union of Federal
Employees, 41 FLRA at 572 n.2, the notice to employees and the ballot
must adequately inform the employees of the issue to be decided, but
that the notes of the meeting "(do) not state anywhere that the NAF
employees would remain affiliated with NAGE." Application for Review at
3. Pointing out that the petition covers only the GS employees. NAGE
argues that (h)ad the NAF employees known that the AC petition would
only be covering the GS employees, they might have voted to keep the
whole affiliation of NAGE Local R7-72 with NAGE." Id.
Next, NAGE asserts that the continuity of representation necessary to
support an amendment of certification is absent. It argues that an
amendment to the certification of the GS unit will have the effect of
making the GS employees members of NFFE, while the NAF employees will
still be members of NAGE Local R7-72. The executive vice president and
the acting president, who are in the GS unit, would become members of
NFFE according to this argument, and new officers would therefore have
to be elected to replace those officers from the NAF unit who remain in
NAGE Local R7-72.
Finally, NAGE argues that the petition should be dismissed because it
was signed by a membership coordinator with NFFE, and that, therefore,
the petition was not filed by the labor organization that is the current
certified and recognized exclusive representative. The NAGE quotes A
Guide to the Federal Service Labor-Management Relations Statute, a
publication of the Authority, in support of its position that the
petition should be dismissed on that basis.
A. Preliminary Matter
NAGE argues that the petition should be dismissed because it was
improperly filed. Specifically at issue is the application of section
2422.1(d) of the Authority's Rules and Regulations, which provides in
pertinent part that a petition for amendment of certification "may be
filed by an activity or agency or by a labor organization which is
currently recognized by the activity or agency as an exclusive
representative." NAGE Local R7-72 was the currently recognized exclusive
representative at the time the petition was filed. NAGE asserts that
the petition was filed by NFFE, rather than by NAGE Local R7-72, as
required by section 2422.1(d). /4/
The section of the petition designated "Name and Address of
Petitioner" contains, as relevant here, the following information:
Bill Ingram, Acting Vice President National Association of
Government Employees Local R7-72
NAGE alleges that the filing was improper because the signature on
the petition is that of the person who is elsewhere identified as
"Membership Coordinator, National Federation of Federal Employees." In
our view, this is irrelevant. The petition clearly states that the
petitioner is the acting vice president of the incumbent, NAGE Local
R7-72. Therefore, it complies with the requirement in section 2422.1(d)
that the petition be filed by the labor organization that is the
currently recognized exclusive representative.
B. The Regional Director's Decision Conforms to Authority Precedent
1. Montrose Factors
We conclude that the Regional Director's decision is consistent with
the standards established in Montrose and applied in numerous Authority
decisions. First, we agree with the Regional Director that the meeting
was held at a time that was convenient to unit members and with adequate
advance notice. As the Regional Director noted, there is no requirement
that a specific number or percentage of members must cast ballots in
order for an affiliation change to be effective. See Rosebud. See also
Lemco Construction, 283 NLRB 459 (1987), quoted with approval in
Rosebud, 34 FLRA at 70 ("(the National Labor Relations Board) will issue
certifications where there is adequate notice and opportunity to vote
and employees are not prevented from voting by the conduct of a party or
by unfairness in the scheduling or mechanics of the election.")
In the absence of any complaints from members of NAGE Local R7-72
that they were denied the opportunity to vote, the fact that only two
unit members voted establishes neither that the meeting place and time
were inconvenient nor that the vote does not reflect the wishes of the
employees in the unit. We note in this regard that although NAGE argues
that three unit members could not attend the meeting, there is no
evidence that those individuals have complained that the scheduling of
the meeting was unfair. As there is no contention that notice of the
meeting was not given sufficiently in advance or that it was improperly
delivered, and there is no allegation that the mechanics of the election
were unfair in any other respect, we conclude that the application
provides no basis for granting review of the Regional Director's
decision in this regard.
We further conclude that the Regional Director did not depart from
Authority precedent in determining that, in the circumstances of this
case, prospective voters in the GS unit were advised with sufficient
clarity about the choices inherent in the proposed affiliation.
NAGE argues that eligible voters did not have sufficient information
to cast an adequately informed vote, as required by Union of Federal
Employees, because the prospective voters were not informed that the
result of a vote to affiliate with NFFE would be the amendment of the
certification of only the GS unit. Specifically, it is argued that
"(h)ad the NAF employees known that the AC petition would only be
covering the GS employees, they might have voted to keep the whole
affiliation of (the) NAGE Local R7-72 with NAGE." Application for Review
at 3. We agree with the Regional Director that, as the petition in this
case does not seek a change in certification with regard to the NAF
unit, considerations concerning that unit are not relevant to this
decision. As the Regional Director stated, "(w)hile the change in
affiliation herein was accomplished in conjunction with another unit,
such fact, standing alone, was not shown to be inconsistent with the
Montrose procedures." Regional Director's decision at 3 n.*.
Montrose requires that both the notice of a special meeting for an
affiliation vote and the ballot itself accurately specify the full scope
of the proposed change in affiliation. Further, the ballot must clearly
state the "choices inherent" in the proposed change. Union of Federal
Employees, 41 FLRA at 575. In this case, those requirements were met
insofar as the notice and the ballot discussed the effects of
affiliation on the members' dues, local officers, terms and conditions
of employment, and other representational and internal union matters.
The fact that the NAF unit has not, to date, filed a petition to amend
its certification does not affect the Regional Director's determination
that the procedures followed for the special meeting and ballot did not
result in procedural unfairness to the employees in the GS unit.
Accordingly, the application provides no basis for granting review of
the Regional Director's decision in this regard.
2. Continuity of Representation
We further agree with the Regional Director's finding that the
petition was supported by evidence of substantial continuity between the
union existing before and after the change in affiliation. See NLRB v.
Financial Institution Employees of America, Local 1182, 475 U.S. 192
(1986) (Financial Institution Employees); Union of Federal Employees,
41 FLRA at 572 n.2, 587 n.4. For the reasons discussed by the Regional
Director, including the fact that the Local's officers served as
representatives in negotiated grievances and made submissions to the
Federal Mediation and Conciliation Service and that the Local continued
to operate with the same degree of autonomy after the election as
before, we agree that there was "no material change in the Local's daily
operation, autonomy or control of operation and it continued as the
representative of employees in various representational matters."
Regional Director's decision at 4.
Again we emphasize that the issues to be resolved in this application
for review relate to employees in the petitioned-for unit. Thus, the
analysis of representational continuity must be made in terms of the GS
unit. In this regard, we simply do not know the import of the failure
of the NAF unit to file an AC petition. It is not evident from the
record before us that the NAF unit has, despite the results of the
affiliation vote, retained its affiliation with NAGE. Further, even
assuming that the NAF unit has not formally affiliated with NFFE and
that NAGE is correct in contending that the GS unit therefore would have
to elect new officers to replace those remaining with NAGE Local R7-72
if the certification of the GS unit is amended, /5/ the record does
indicate that two of the officers are members of the unit involved in
this case. Moreover, continuity of officers is only one element the
Authority relies on in determining representational continuity. Union
of Federal Employees, 41 FLRA at 572, 582 (Authority agreed with
Regional Director that there was sufficient continuity based on, among
other things, retention of officers). Other elements relating to local
autonomy and control of day-to-day operations are also considered to be
strong indicia of representational continuity. Id. at 582. In view of
all the factors cited by the Regional Director, we find sufficient
continuity of representation has been demonstrated and that the
application does not establish a basis to grant review of the Regional
Director's decision in this regard.
For the foregoing reasons, the application for review is dismissed.
/6/
(1) We have changed the designations of the labor organizations in
the caption of this case to reflect the discussion below at VI.A.
(2) The Authority issued an order directing the NFFE to file with the
Authority by September 8, 1992, a statement of service on all parties to
comply with the Authority's Rules and Regulations. The statement of
service was timely filed and we have considered the opposition.
(3) The certified unit is described as follows:
INCLUDED:
All General Schedule (GS) employees, including temporary
employees with appointments of more than 180 days, employed at
Rock Island Arsenal and U.S. Army Troop Support Agency, Rock
Island Arsenal Commissary and U.S. Army Health Clinic, Rock Island
Arsenal, Rock Island, Illinois.
EXCLUDED
All professional employees; management officials;
supervisors; employees described in 5 USC 7112(b)(2), (3), (4),
(6) and (7); Guards; Firefighters; Wage Grade employees; and
temporary employees with appointments of less than 180 days based
upon a specific event non-recurring.
(4) Although the Regional Director inadvertently failed to address
this issue, it was raised before him both in NAGE's position statement
dated November 14, 1991, and in its response to the filing of the
petition, dated January 24, 1992. As the issue was timely presented to
the Regional Director, it is properly before us. See Section 2422.17(b)
of the Authority's Rules and Regulations (an application for review "may
not raise any issue or allege any facts not timely presented to the
Regional Director").
(5) It is difficult to determine from the record whether any of the
current officers of Local R7-72 are in the NAF unit. It appears that at
least one steward of Local R7-72 is a NAF unit employee.
(6) In his Decision and Order, the Regional Director stated his
intention to amend the certification to reflect the change of name of
the petitioner to the National Federation of Federal Employees. We
note, however, that the petition refers to the National Federation of
Federal Employees, Local 2119.
46 FLRA 66
46 FLRA NO. 5
New York State Council of the Association of Civilian Technicians and
U.S. Dept. of Defense, National Guard Bureau, New York State Department
of Military and Naval Affairs (Goldsmith, Arbitrator), Case No.
0-AR-2244 (Decided October 7, 1992)
7122(a)
FPM chapter 335, Appendix A
ARBITRATION EXCEPTIONS
AWARD VIOLATES REGULATIONS
SELECTION PROCEDURE
FAILURE TO REMOVE EMPLOYEE
An employee grieved the filling of a vacant position by the Agency,
asserting that the selected employee was both preselected and did not
satisfy the qualification requirements for the position. The Arbitrator
found that the Agency violated applicable regulations by selecting an
unqualified candidate but declined to remove the selected employee from
the position.
The Authority concluded that the failure to remove the selected
employee was inconsistent with Federal Personnel Manual (FPM) chapter
335, Appendix A and that, therefore, the award was deficient.
Accordingly, the Authority modified the award to require the Agency to
remove the selected employee from the disputed position. The Authority
also directed the Agency to rerun the selection action.
The Authority noted that it has consistently held that where an
arbitrator determines that an agency violated proper procedures in
filling a vacant position, the incumbent employee is entitled to be
retained in the position pending the corrective action unless it is
specifically determined that the incumbent originally could not have
been properly selected. In the instant case, the Arbitrator determined
that at the time of the selection action the selected employee did not
meet the qualification requirements for the disputed position.
Therefore, the record established that the selected employee originally
could not have been properly selected.
Case No. 0-AR-2244
NEW YORK STATE COUNCIL OF THE ASSOCIATION OF CIVILIAN TECHNICIANS
(Union)
U.S. DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, NEW YORK STATE
DEPARTMENT OF MILITARY, AND NAVAL AFFAIRS
(Agency)
October 7, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Steven J. Goldsmith filed by the Association of Civilian
Technicians on behalf of the Union under section 7122(a) of the Federal
Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Agency did not file an
opposition to the exceptions.
An employee grieved the filling of a vacant position by the Agency,
asserting that the selected employee was both preselected and did not
satisfy the qualification requirements for the position. The Arbitrator
found that the Agency violated applicable regulations by selecting an
unqualified candidate but declined to remove the selected employee from
the position.
For the following reasons, we conclude that the failure to remove the
selected employee is inconsistent with Federal Personnel Manual (FPM)
chapter 335, Appendix A and renders the award deficient. Accordingly,
we will modify the award to require the Agency to remove the selected
employee from the disputed position. We will also direct the Agency to
rerun the selection action.
The Agency posted a vacancy announcement for the position of
Logistics Management Specialist, GS-9. As quoted by the Arbitrator, the
announcement for the position required the following specialized
experience: "'Twenty-four (24) months of experience, and/or training
which provides knowledge of formulation, coordination and administration
of plans and programs and a factual knowledge of the responsibilities of
logistics plans and support functions.'" Award at 3. The Arbitrator
also noted that the "Merit Promotion and Placement Plan for New York
National Guard Technicians" requires that candidates for a position
"'must meet the basic qualifications established for (a) position
including any selective placement factors.'" Id. at 4.
The selected employee submitted an application for the position
listing experience as a mechanic and a performance appraisal in which he
had been rated outstanding in that capacity. The selected employee also
attached to his application a lengthy record of his knowledge, skills,
and abilities (KSAs) for the position addressing his work experience and
training relating to logistics planning.
A staffing specialist who reviewed the applications determined that
four candidates, including the selected employee and the grievant, met
the minimum qualifications for the position. The staffing specialist
reached her determination regarding the selected employee based on the
employee's statements regarding his KSAs, rather than his application,
noting that the application was based on his employment record as a
mechanic. The staffing specialist thereafter submitted the names of the
four candidates to the Commander for Technicians, who was the selecting
official and in whose work unit the position was located. The Commander
certified that the four candidates were eligible for selection to the
position.
Prior to the actual selection, the Commander assigned the selected
employee to the position of Logistics Management Specialist "on a
provisional basis(.)" Id. at 7. The Arbitrator found that the selected
employee was the only one of the four certified employees who was
willing to take the assignment on a temporary basis. After the
Commander chose the selected employee to occupy the position
permanently, a grievance was filed. The grievance alleged that the
selected employee did not meet the minimum requirements for the position
as stated in the vacancy announcement and that he was preselected. The
grievant sought as a remedy that the Agency vacate the position,
reannounce the position, and select a candidate from a proper
eligibility list. In response to the grievance, the Agency maintained
that the selected employee was qualified for the position. The
grievance was not resolved and was submitted to arbitration.
The parties were unable to agree on a joint submission of issues to
the Arbitrator. Consequently, the Arbitrator adopted what he claimed
was the Agency's proposed issue as follows:
Did Management violate the Regulations or Rules of Procedure in
determining whether (the selected employee) met the basic
qualifications for the position of Logistics Management
Specialist? If so, what shall be the remedy?
Id. at 1.
The Arbitrator first dismissed the claim that the selected employee
had been preselected. The Arbitrator noted that the Commander's first
choice was a different employee but that the selected employee was the
only one who had volunteered to take the position on a temporary basis.
The Arbitrator then addressed whether the selection and placement
action violated rules or regulations. The Arbitrator found that the
Agency violated "applicable (r)egulations" in determining that the
selected employee met the basic qualifications for the position. Id. at
10. In reaching this conclusion, the Arbitrator found that, while it
appeared from the KSAs attached to the selected employee's application
that he met the 24-month experience requirement set forth in the vacancy
announcement, that "experience was strictly in automotive maintenance
and mechanics." Id. at 9-10. The Arbitrator found that "the 'work
experience' portion" of the employee's application and unrebutted
testimony at the arbitration hearing, including an admission by the
selected employee, established that fact. Id. at 9. The Arbitrator
also found that the selected employee "at best was puffing in his KSA
addendum to the (application)," that he lacked the requisite 24 months
of experience called for in the vacancy announcement, and that his
selection "did not meet the requirement of the Merit Promotion and
Placement Plan . . . ." Id. at 10. The Arbitrator concluded that the
selected employee "was not a marginal applicant. He out-and-out just
did not qualify." Id. In fact, the Arbitrator noted the Commander's
testimony at the arbitration hearing that "in actuality 'none of the
four' individuals declared eligible had such experience." Id. at 8.
Despite finding a violation of "applicable (r)egulations" the
Arbitrator rejected the request that the Agency remove the incumbent
from the improperly filled position, reannounce the position, and select
a candidate from a proper eligibility list. Id. at 10. In so doing,
the Arbitrator noted the Agency's testimony that (it) needs someone on
that job" and concluded "that there are no other candidates." Id. at 11.
According to the Arbitrator, the grievant "stated that he (did) not
want the job(.)" Id. at 2. The Arbitrator also found that the record
established that the selected employee "is performing well as a
Logistics Management Technician(,)" and "is an outstanding employee" in
that position. Id. at 10. The Arbitrator stated that the Union did not
"offer any reasons or justification for the relief sought(,)" amd that
it did not appear() that . . . the (g)rievant nor any other employee
(had) been damaged by (the) selection(.)" Id. at 10-11. Therefore, the
Arbitrator concluded that "(i)t would be unjust under these
circumstances to direct that the position be vacated and the Unit left
short-handed." Id. at 11.
The Union states that the award is deficient because it is contrary
to rule and regulation. Specifically, the Union maintains that the
Arbitrator's denial of its requested remedy, that the Agency vacate the
improperly filled position, "is a direct violation" of FPM chapter 335,
Appendix A, section A-4(b)(1)(b), Agency regulation TPR-335, the State
Merit Promotion Plan DMNA Pamphlet 690-4, and the merit promotion plan
contained in the parties' negotiated agreement. Exceptions at 5.
The Union's arguments center around its claim that the selected
employee did not meet the requirements of having 24 months of experience
for the position of Logistics Management Specialist as provided in the
Agency's regulations. The Union adds that in order for the selected
employee to be retained in the position, there must be a showing that
the employee would have been selected had proper procedures been
followed at the time of the selection, a showing that the promotion can
be corrected to conform to applicable regulatory requirements, or a
finding that the employee presently meets all the requirements for the
position. The Union also states that if an arbitrator finds that a
selection action did not conform to applicable legal or regulatory
requirements, or to those set forth in a collective bargaining
agreement, the arbitrator may order that the action be rerun.
The Union also asserts that "(t)he award evidences a manifest
disregard for the (parties' negotiated) agreement and does not represent
a plausible interpretation of the agreement." Id. The Union states that
by permitting an unqualified applicant to be selected over qualified
applicants, the award provides no protection against "arbitrary and
capricious selections." Id.
In addition, the Union maintains that the award is deficient because
it is based on a series of nonfacts and that the central facts
underlying the Arbitrator's denial of the requested remedy are
erroneous, but for which the Arbitrator would have reached a different
conclusion. The nonfacts adverted to relate to the Arbitrator's
findings that the grievant did not wish to be placed in the vacant
position, that there were no other qualified applicants for the
position, that no harm was suffered as a result of the selection, and
that the Union had not justified the remedy requested. The Union adds
that the Arbitrator misidentified certain employees in his discussion
and made other misstatements of facts. The Union also claims that the
Arbitrator erroneously expressed concern that if he directed the Agency
to vacate the position the unit would be left short-handed.
A. Analysis and Conclusions
We will find an award deficient when it is contrary to law, rule, or
regulation, or on grounds similar to those applied by courts in private
sector labor relations cases. For the following reasons, we find that
to the extent the award fails to remove the incumbent employee from the
disputed position, the award is inconsistent with FPM chapter 335,
Appendix A. /*/ Accordingly, we will modify the award to direct that
the incumbent employee be removed.
The provisions of FPM chapter 335 govern promotion and internal
placement. Appendix A to that chapter contains, among other things, the
corrective actions that may be taken for a failure to adhere to agency
promotion plans. As defined in section A-4(a)(2)(a) of Appendix A, "(a)
procedural violation occurs when a promotion action does not conform to
the requirements of the applicable promotion plan." In this case, the
Arbitrator found that the selection action did not meet the requirements
of the Agency's merit promotion plan because the selected employee did
not have the requisite experience for the position. While the
Arbitrator did not specifically address the applicability of Appendix A
to his decision, he found that the Agency had violated "applicable
(r)egulations." Award at 10. It is apparent, from a reading of the
award and the relevant provisions of the FPM, that the Agency committed
a procedural violation of the FPM because its selection action did not
conform with a requirement contained in its merit promotion plan.
Despite his finding of a violation, the Arbitrator rejected the
Union's request that the incumbent be removed from the position. The
Arbitrator found that the incumbent was performing well in his position
and that there were no other candidates who could satisfy the Agency's
stated need for someone to occupy the position. Appendix A authorizes
the retention of an incumbent employee pending action to correct a
procedural violation, but only if certain conditions are satisfied.
Specifically, under section A-4(b)(1)(b), an employee may be retained in
a position only if reconstruction of the promotion action demonstrates
that the employee could have been selected had the proper procedures
been followed at the time of the selection action or if the Office of
Personnel Management (OPM) office with geographic jurisdiction approves
the retention. In addition, section A-4(a) requires that corrective
actions be determined on the basis of all the facts presented, with due
regard to the circumstances surrounding the violation and the equitable
and legal rights of the parties involved, including the interests of the
Government.
In interpreting these provisions, the Authority consistently has held
that where an arbitrator determines that an agency violated proper
procedures in filling a vacant position, the incumbent employee is
entitled to be retained in the position pending the corrective action
unless it is specifically determined that the incumbent originally could
not have been properly selected. See, for example, U.S. Department of
the Army Headquarters, U.S. Army Garrison, Fort Sam Houston, Texas and
National Federation of Federal Employees, Local 28, 45 FLRA 879, 881-82
(1992) and cases cited therein. In this case, the Arbitrator determined
that the selected employee "was not a marginal applicant. He
out-and-out just did not qualify." Award at 10. This is tantamount to a
finding that the employee originally could not have been selected had
the proper procedures of the Agency's merit promotion plan been
followed. Thus, there is no basis, under the applicable FPM
requirements, on which to retain the incumbent employee. Consequently,
to the extent the award failed to remove that employee from the disputed
position, the award is deficient as contrary to FPM chapter 335,
Appendix A.
This case is distinguishable from U.S. Department of Defense, Army
Chemical and Military Police Centers, Fort McClellan, Alabama and
American Federation of Government Employees, Local 1941, 39 FLRA 457
(1991) and U.S. Department of Health and Human Services, Social Security
Administration, San Francisco Region and American Federation of
Government Employees, Council 147, 38 FLRA 1183 (1990). In each of
those cases, the Authority determined that an award denying the union's
request to remove an incumbent from a disputed position was based on the
arbitrator's finding that the incumbent could originally have been
properly selected. For that reason, the selection actions were not
inconsistent with FPM chapter 335, Appendix A. In the instant case, by
contrast, the Arbitrator determined that at the time of the selection
action the selected employee did not meet the qualification requirements
for the disputed position. Therefore, the record establishes that the
selected employee originally could not have been properly selected.
Accordingly, we will modify the award and direct that the Agency
remove the incumbent employee from the disputed position. In so doing,
the Agency is advised to follow the corrective action requirements set
forth in Appendix A that apply when an employee is not retained in a
position, as well as any other applicable legal and regulatory
requirements. In addition, and assuming that the Agency elects to fill
the vacated position, we will order the Agency to rerun the selection
action for the position of Logistics Management Specialist, GS-9. Such
an order is consistent with our well established precedent that where a
selection action does not conform to applicable legal requirements, an
order directing that the action be rerun is appropriate. See, for
example, U.S. Small Business Administration, Atlanta, Georgia and
American Federation of Government Employees, Local 3906, 37 FLRA 137,
143 (1990). Of course, the Agency is free to exercise its right not to
fill the position, in which case there would be no obligation to rerun
the selection action.
In light of our decision, there is no need to consider the Union's
remaining exceptions.
The award is modified to require the Agency to remove the selected
employee from the disputed position. The Agency will rerun the
selection action for the position of Logistics Management Specialist,
GS-9. The rerunning of the selection action, and the actions related to
the incumbent employee, must conform fully with controlling law and
regulation and the parties' collective bargaining agreement.
(*) The relevant provisions of FPM chapter 335, Appendix A, section
A-4 are set forth in the Appendix to this decision.
FPM Chapter 335, Appendix A, A-4a provides, in relevant part:
A-4. CORRECTIVE ACTIONS
a. General. (1) 15.1 Alternative actions. Failure to adhere
strictly to laws, OPM regulations and instructions, agency
policies and guidelines, and agency promotion plans is to be
rectified promptly by the OPM or the agency involved. Action to
rectify a violation may involve an employee who was erroneously
promoted, an employee or employees who were not promoted or
considered because of the violation, or officials who caused or
sanctioned the violation. It also may involve correction of
program deficiencies. The nature and extent of actions to be
taken in any case have to be determined on the basis of all the
facts in the case, with due regard to the circumstances
surrounding the violation, to the equitable and legal rights of
the parties concerned, and to the interests of the Government.
(2) Types of promotion violations.
(a) Procedural. A procedural violation occurs when a promotion
action does not conform to the requirements of the applicable
promotion plan . . . .
(b) Action involving erroneously promoted employee
(1) Retention in position.
(a) General. The general rule is that an erroneously promoted
employee may be retained in the position only if the promotion
action can be corrected to conform essentially to all OPM and
agency requirements as of the date the action was taken. As
indicated above, however, corrective action decisions must be
tempered by all the facts surrounding the violation. Under some
conditions, it may be permissible to retain the employee in the
position even when the general rule does not apply.
(b) Procedural violation. In this kind of violation, an
employee may be retained in the position only if --
(i) Reconstruction of the promotion action shows that he or she
could have been selected had the proper procedures been followed
at the time the action was taken; or
(ii) The OPM office (regional or central) with geographic
jurisdiction gives approval.
(2) Corrective action. If an employee is not retained in the
position, he or she must be returned to his or her former position
or placed in another position for which he or she is qualified.
If the latter position is in a higher grade or level than the
position he or she was in prior to the erroneous promotion, the
position change is made under competitive promotion procedures as
though the employee were still serving at the grade or level from
which erroneously promoted.
46 FLRA 49
46 FLRA NO. 3
National Weather Service Employees Organization (MEBA/NMU) and U.S.
Dept. of Commerce, National Oceanic and Atmospheric Adm., National
Weather Service, Silver Spring, Maryland, Case No. 0-NG-2039 (Decided
October 5, 1992)
7106(a)(2)(B)
7106(a)(2)(A)
NEGOTIABILITY DETERMINATION
MGT'S RIGHT TO ASSIGN WORK
MGT'S RIGHT TO ASSIGN EMPLOYEES
This case concerned the negotiability of two proposals offered by the
Union during negotiations over the impact and implementation of the
Agency's decision to phase out the pilot weather briefing (PWB) service
provided at certain of its field offices. The service is offered by the
Agency to persons involved with commercial and general aviation.
Proposal 1 would delay implementation of the Agency's decision to
terminate the PWB program for 180 days and require the Agency to inform
users of the service that, unless requests for pilot weather briefings
reached 100 per month, the service would be terminated. At field
offices where demand for pilot weather briefings failed to meet the
threshold number of requests, Proposal 2 would require the Agency to
detail employees twice each year for a period of 2 weeks to field
offices that continued to conduct pilot weather briefings in order for
these employees to maintain their PWB certification.
The Authority found that Proposal 1 was nonnegotiable because it
directly and excessively interfered with management's right to assign
work under section 7106(a)(2)(B) of the Statute. Proposal 2 was found
to be nonnegotiable because it directly and excessively interfered with
the right to assign employees under section 7106(a)(2)(A) of the
Statute.
Case No. 0-NG-2039
NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION (MEBA/NMU)
(Union)
U.S. DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER SERVICE, SILVER SPRING, MARYLAND
(Agency)
October 5, 1992
Before Chairman McKee and Members Talkin and Armendariz
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 two proposals offered by the Union during
negotiations over the impact and implementation of the Agency's decision
to phase out the pilot weather briefing (PWB) service provided at
certain of its field offices. The service is offered by the Agency to
persons involved with commercial and general aviation.
Proposal 1 would delay implementation of the Agency's decision to
terminate the PWB program for 180 days and require the Agency to inform
users of the service that, unless requests for pilot weather briefings
reach 100 per month, the service will be terminated. At field offices
where demand for pilot weather briefings fails to meet the threshold
number of requests, Proposal 2 would require the Agency to detail
employees twice each year for a period of 2 weeks to field offices that
continue to conduct pilot weather briefings in order for these employees
to maintain their PWB certification.
For the following reasons, we find that Proposal 1 is nonnegotiable
because it directly and excessively interferes with management's right
to assign work under section 7106(a)(2)(B) of the Statute. Proposal 2
is nonnegotiable because it directly and excessively interferes with the
right to assign employees under section 7106(a)(2)(A) of the Statute.
The PWB provides a variety of weather information in a form usable by
pilots in making pre-flight and/or in-flight decisions. Only employees
who obtain a PWB certification may conduct such a briefing. The PWB
certification consists of a self-study course, a written examination,
and an oral examination during which an employee conducts a
demonstration briefing. If an employee is transferred to a position not
requiring PWBs, the certification is invalidated. If an employee's PWB
certification has been invalid for 2 years or less and the employee
transfers into a position requiring PWBs, the employee may be
recertified by successfully completing the oral examination. If the
certification has been invalid for more than 2 years, the employee must
pass both the written and oral examinations in order to be recertified.
On or about October 3, 1991, the Agency notified the Union that it
planned to discontinue the PWB service at its Southern Region field
offices where the Agency had determined that the demand for the service
was insufficient. The Agency defined insufficient demand as less than
100 briefing requests per month. The Agency also informed the Union
that the termination of the PWB service would involve the revocation of
the employees' PWB certification. /1/ Thereafter, the Agency notified
the Union that the phase-out of the PWB service was nationwide in scope
and would involve regions in addition to the Southern Region. In
response to the Agency's announcement, the Union submitted the two
disputed proposals.
The NWS shall hold in abeyance termination of pilot weather
briefing for 180 days during which time management will contact
local users such as fixed base operators, airport managers,
corporate aviation departments, regional state and national groups
and aviation associations such as AOPA, NBAA, EAA and explain that
unless each office reaches 100 briefings a month, pilot weather
briefings will be terminated. NWS shall notify NWSEO's national
office of the language of the contact and provide a copy of all
results.
A. Positions of the Parties
1. The Agency
The Agency contends that the proposal is nonnegotiable because it
directly and excessively interferes with management's right to assign
work under section 7106(a)(2)(B) of the Statute. The Agency claims that
the right to assign work includes the right to determine which duties
will be assigned to particular positions. The Agency asserts that the
effect of the proposal is not merely to delay Agency action for 180 days
but, rather, also to prevent the Agency from phasing out the PWB
program. Under the proposal, the Agency asserts that it would be
required to continue the PWB service as long as the field offices
continue to receive 100 briefing requests per month.
The Agency also contends that as Proposal 1 directly interferes with
management's right to assign work, it cannot be considered a negotiable
procedure under section 7106(b)(2) of the Statute. The Agency argues
that the proposal affects not only the Agency's right to determine when
the termination of the PWB service will occur but also whether the
service will be terminated in any given office. For this reason, the
Agency argues that Proposal 1 relates to the substance of its decision
to terminate PWB service and is not procedural in nature.
The Agency also argues that the proposal is not an appropriate
arrangement under section 7106(b)(3) of the Statute. First, the Agency
states that the Union has not indicated that Proposal 1 is intended as
an appropriate arrangement. According to the Agency, proposals that
would simply improve employee opportunities for advancement are not
negotiable. The Agency asserts that Proposal 1 concerns the
establishment of job requirements, which by itself does not adversely
affect employees. Rather, the Agency argues that any adverse effect
from job requirements must flow from actions taken against an employee
based on the application of those job requirements. Because Proposal 1
concerns only the decision to eliminate job requirements, the Agency
maintains that it cannot be considered an arrangement for adversely
affected employees.
The Agency claims that the Union has not shown how the elimination of
PWBs would adversely affect employees. The Agency notes that this
action is being taken only where there is no significant demand for the
service. The Agency states that PWB service is not a grade determining
function and that there is a method by which employees can receive a
certificate of accomplishment denoting that they have received training
to provide PWB service.
However, assuming that Proposal 1 is an arrangement for employees
adversely affected by the decision to eliminate PWB service, the Agency
asserts that the proposal excessively interferes with management's right
to assign work. The Agency explains that the proposal "would completely
abrogate" the right to assign work for 180 days, during which time the
proposal would require the Agency to notify users of the possible
termination of PWB service. Statement of Position at 11. The Agency
further states that if the action required by the proposal generates
more than 100 requests for PWBs per month, the proposal would preclude
the elimination of the PWB service and, thereby, prevent the Agency from
assigning work beyond 180 days. Accordingly, the Agency argues that
Proposal 1 is not negotiable as an appropriate arrangement.
2. The Union
The Union concedes that Proposal 1 infringes on management's reserved
rights but contends that it is an appropriate arrangement for employees
adversely affected by the Agency's decision to terminate the PWB service
at offices with decreased demand. The Union argues that the Agency
erroneously states that the Union did not specify that Proposal 1 was
intended as an appropriate arrangement. The Union asserts that, in its
petition for review, it clearly identified several ways in which
employees would be adversely affected by the Agency's decision to
terminate the PWB service as well as how the proposal was intended to
mitigate those adverse effects.
More particularly, the Union states that employees who lose their PWB
certifications would be at a competitive disadvantage relative to other
certified employees when applying for promotion and/or transfer to
stations where PWB service is continued. According to the Union, if
employees from field offices where PWB service has been terminated are
selected for such positions, they will be required to retake the
certification examinations. If they fail the recertification
examinations twice, they could face the risk of an adverse action being
taken against them based on a lack of competence to perform the duties
of the new position. In addition, the Union maintains that the PWB
program traditionally has served as functional training for interns who
may become aviation forecasters after completing their internships. The
Union argues that these adverse effects were not disputed by the Agency.
The Union also explains that the intent of Proposal 1 is to increase
the demand for PWB service and thereby minimize the number of offices at
which the service is terminated. In this regard, the Union made the
following statement in its petition for review:
The intent of this proposal is to provide notice to the users of
the pilot weather briefing service that unless demand increases at
particular offices, the service will be terminated. By informing
the public that this service might be lost, (the Union)
anticipates that demand would increase, thereby minimizing the
number of offices at which the PWB program would be eliminated.
Petition for Review at 4. The Union further contends that the proposal
would not prevent the Agency from phasing out the PWB service because
the Agency would still be free to change the threshold number of
briefing requests it deems necessary to maintain the service "or to
eliminate that service entirely regardless of the demand created by
proposal No. 1." Response at 2.
Contrary to the Agency's argument, the Union states that it has not
claimed that Proposal 1 is a negotiable procedure. Instead, the Union
argues that Proposal 1 is an appropriate arrangement and that the Agency
has failed to demonstrate that it excessively interferes with the
exercise of management's rights. The Union reiterates its argument that
nothing in the proposal would prevent the Agency from terminating the
PWB program if demand exceeds 100 briefings per month because the Agency
retains the discretion to change the threshold number of requests
necessary to maintain the service at any time. Accordingly, the Union
argues that Proposal 1 is a negotiable appropriate arrangement.
B. Analysis and Conclusions
We conclude that the proposal is nonnegotiable because it directly
and excessively interferes with management's right to assign work under
section 7106(a)(2)(B) of the Statute. /2/
Proposal 1 does several things. It requires the Agency to hold
termination of the PWB service in abeyance for 180 days and to contact a
variety of users to advise them that unless PWB requests reach 100 per
month the service will be terminated. Thus, for the 180-day period in
which users are being contacted, the proposal would require the Agency
to continue providing the PWB service at all of its locations. The
proposal also requires the Agency to provide the Union with the language
used to contact the users and with a copy of all "results." Inasmuch as
the Union concedes that the proposal interferes with the exercise of
management's rights under section 7106 of the Statute, for the purposes
of this decision we will assume, without deciding, that the proposal
directly interferes with the Agency's right to assign work under section
7106(a)(2)(B) of the Statute.
Next, we address whether the proposal constitutes a negotiable
appropriate arrangement under section 7106(b)(3) of the Statute. In
determining whether a proposal constitutes an appropriate arrangement,
we must decide whether the proposal is intended as an arrangement for
employees adversely affected by the exercise of a management right, and
whether the proposal is appropriate because it does not excessively
interfere with the exercise of a management right. See National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA 24, 31-33 (1986).
The Union claims that the proposal is designed to mitigate the
adverse effects on unit employees of management's decision to phase out
the PWB program. Specifically, the Union points to the fact that
employees will lose their PWB certification at those locations where the
service is terminated and will be at a competitive disadvantage when
applying for positions at locations where the service is retained.
Contrary to the Agency's assertion, we find that the Union has
established that the proposal is intended as an appropriate arrangement
for employees adversely affected by management's exercise of its right
to assign work.
However, we further find that the proposal would excessively
interfere with the Agency's right to assign work. As noted, the
proposal is designed, in part, to prevent the Agency from implementing
its decision to terminate the PWB service for at least 180 days even
though the Agency has already identified the field offices at which the
level of demand does not warrant continued operation of that service.
Thus, the proposal does not merely require that the Agency delay making
a determination regarding the fate of the PWB service; rather, it would
require the Agency, for a period of at least 180 days, to reverse its
decision to terminate the PWB service at certain locations. Moreover,
as the Union explains, the purpose of the proposal is to generate
increased demand for briefings in order to minimize the number of
locations at which the service would be terminated. If, however, as a
result of the Agency contacts mandated by the proposal, there is
increased demand for the briefings but that demand turns out to be of
short duration, it appears that under the proposal the Agency would be
required to maintain the PWB service for another 180 days at those
locations before it could finally effectuate its original decision to
terminate the briefings.
In addition, the assignment of PWB duties for the 180-day period
would operate in a potentially large number of offices. In this regard,
the Agency's decision to terminate the service, though originally
applicable to offices in the Agency's Southern Region, was expanded to
include all offices nationwide. The record indicates that the Agency is
comprised of six regions and that the Southern Region alone has 41 field
offices that were identified as having insufficient user demand.
Consequently, the continued assignment of PWB services would operate in
41, and potentially far more, field offices.
On the other hand, the benefits that would be afforded employees
under the proposal include the maintenance of their PWB certifications
and the assurance that employees would not be at a competitive
disadvantage when competing for positions requiring PWB certification.
However, we note that the loss of PWB certification does not affect an
employee's grade level and, for those employees who wish to maintain
their certifications, there is a means of doing so. Thus, the record
indicates that employees can maintain their certifications by retaking
and successfully completing the pertinent portions of the certification
examination. Therefore, on balance, we view the intrusion on the
exercise of management's right to assign work occasioned by the proposal
as outweighing the benefits afforded to employees. Consequently, we
conclude that the proposal excessively interferes with the Agency's
right to assign work and that it does not constitute a negotiable
appropriate arrangement.
We also find that Proposal 1 is distinguishable from the proposals
found negotiable in National Weather Service Employees Organization and
U.S. Department of Commerce, National Oceanic and Atmospheric
Administration, National Weather Service, 37 FLRA 392, 399 (1990) and
American Federation of Government Employees, Local 1812 and United
States Information Agency, Washington, D.C., 45 FLRA 923 (1992). In
those cases, the proposals merely required the respective agencies to
maintain the status quo to enable the parties to satisfy their
bargaining obligations under the Statute. In contrast, Proposal 1 says
nothing about suspending the planned termination of the program until
the parties have fulfilled their bargaining obligations. Instead, the
proposal would require the Agency, after it has fulfilled its bargaining
obligation, to continue for 180 days the assignment of duties attendant
to the PWB service despite the Agency's decision to terminate the
service based on insufficient user demand.
At those NWS stations where PWB's fall below the established
quality (sic) threshold, management will detail employees TDY,
with full per diem, two times a year for a period of two weeks to
offices that still conduct PWB's in order that these employees
maintain proficiency and certification.
A. Positions of the Parties
1. The Agency
The Agency contends that the proposal interferes with management's
right to assign work under section 7106(a)(2)(B) of the Statute because
it requires the Agency to detail employees for training. The Agency
further contends that the requirement to detail employees to specific
field offices twice a year for two weeks interferes with its right to
determine the numbers, types, and grades of employees or positions
assigned to any organizational subdivision or work project and with its
right to determine the methods and means of performing work all under
section 7106(b)(1) of the Statute. The Agency argues that it would be
required to assign additional staff or direct overtime in those field
offices from which employees are detailed. The Agency claims that the
proposal would create staffing problems and require the reassignment of
work during the period of the details.
As it argued with regard to Proposal 1, the Agency contends that the
Union has not shown that Proposal 2 is either a negotiable procedure or
an arrangement for employees adversely affected by the exercise of
management's rights. However, the Agency argues that if the Authority
finds that Proposal 2 is an arrangement under 7106(b)(3) of the Statute,
it is not appropriate because it excessively interferes with
management's right to assign work. The Agency asserts that, although
proposals requiring an agency to provide training may be negotiable as
appropriate arrangements, Proposal 2 would deprive it of all discretion
to determine the type and duration of training. Specifically, the
Agency argues that Proposal 2 would impermissibly prescribe the
methodology, scheduling, duration, type, content, and characteristics of
the PWB training. The Agency further asserts that the negative impact
of the proposal on the exercise of management's right to assign work
"outweighs the any (sic) adverse impact caused by management's
elimination of the PWB from offices where there has been little or no
demand for the service." Statement of Position at 13.
2. The Union
The Union acknowledges that Proposal 2 infringes on the Agency's
reserved rights. However, the Union contends that Proposal 2 is an
arrangement for employees adversely affected by the Agency's decision to
terminate PWB service at certain field offices. In this regard, the
Union asserts that Proposal 2 mitigates the adverse effects by providing
employees with a means to maintain their PWB certification after the
service has been terminated.
The Union further contends that Proposal 2 does not excessively
interfere with the exercise of management's rights. Contrary to the
Agency's position, the Union argues that the proposal is unrelated to
training. Rather, the Union asserts that the proposal applies only to
employees who are already trained and certified and allows them to
retain their certification by maintaining proficiency on the duties
attendant to PWBs. Accordingly, the Union claims that the proposal is
negotiable as an appropriate arrangement.
B. Analysis and Conclusions
We conclude that the proposal is nonnegotiable because it directly
and excessively interferes with management's right to assign employees
under section 7106(a)(2)(A) of the Statute.
Initially, we agree with the Union that the Agency's arguments
regarding training are misplaced. Generally, training involves the
provision of instruction on employees' duties and responsibilities. See
American Federation of Government Employees, Local 3407 and U.S.
Department of Defense, Defense Mapping Agency, Hydrographic-Topographic,
Washington, D.C., 39 FLRA 557, 560 (1991). Proposals that require
agencies to provide such training to employees directly interfere with
management's right to assign work. 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, 611 (1992).
Clearly, Proposal 2 is not concerned with providing instruction to
employees on the duties and responsibilities of their jobs. Rather, the
proposal is concerned with providing details to employees to enable them
to maintain their PWB certifications. Therefore, we reject the Agency's
argument that the proposal directly and excessively interferes with the
right to assign work.
We also reject the Agency's assertion that the proposal is
inconsistent with its rights under section 7106(b)(1) of the Statute.
Nothing in the proposal relates either to the numbers, types, and grades
of employees or positions assigned to an organizational subdivision or
work project or to the methods and means of performing work. Compare
Patent Office Professional Association and Department of Commerce,
Patent and Trademark Office, 39 FLRA 783, 805 (1991) (management's right
to determine the number of employees under section 7106(b)(1) includes
the right to assign a particular number of employees to perform a
particular task); American Federation of Government Employees, National
Veterans Administration Council and U.S. Department of Veterans Affairs,
Washington, D.C., 40 FLRA 1052, 1066 (1991) ("method" refers to the way
in which an agency performs its work; "means" refers to any
instrumentality such as an agent, tool, device, measure, plan or policy,
that is used by an agency to accomplish or further its work). As noted,
the proposal here simply provides for details of employees and does not,
in our view, relate to the numbers of employees who perform a particular
task or the methods and means by which such a task is performed.
However, the Authority previously has determined that proposals that
place substantive limitations on an agency's ability to assign employees
to details, including restrictions on the length of details, directly
interfere with the agency's right to assign employees under section
7106(a)(2)(A) of the Statute. See for example, National Association of
Government Employees, Local R5-82 and U.S. Department of the Navy, Navy
Exchange, Naval Air Station, Jacksonville, Florida, 43 FLRA 25, 38
(1991). In this case, Proposal 2 would prescribe both the duration and
frequency of details. As such, we find that the proposal directly
interferes with the Agency's right to assign employees.
Next, we address whether the proposal is negotiable as an appropriate
arrangement. The Union claims that Proposal 2 is intended to address
the adverse effects of the Agency's decision to terminate PWB service at
various field offices. Specifically, the Union claims that the proposal
is designed to address the revocation of employees' PWB certification.
We find, as we did in connection with Proposal 1, that Proposal 2 is
intended as an arrangement within the meaning of section 7106(b)(3) of
the Statute for employees adversely affected by the Agency's right to
assign work.
We now consider whether Proposal 2 is an appropriate arrangement or
whether it excessively interferes with the exercise of a management
right. The proposal would benefit the affected employees by enabling
them to maintain their PWB certification and proficiency and to apply
for transfers and promotions at field offices where PWB service is
continued without facing any competitive disadvantage. On the other
hand, the proposal would require the Agency to detail employees to field
offices that continue to conduct PWBs and would leave the Agency with no
discretion to decide on the frequency and duration of the details once
the Agency has discontinued PWB service. Thus, under the terms of the
proposal, the Agency would be required to detail each employee twice
each year for a period of two weeks. The number of offices that would
be required to detail employees is significant in our view. As we noted
in connection with our discussion of Proposal 1, there are 41 offices in
the Southern Region alone that would be affected by the requirement.
Given the Agency's stated intent to eliminate PWB service at all its
locations where user demand is below a certain level, the number of
offices that would be affected is potentially much greater. Therefore,
on balance, we find that the proposal would place a substantial burden
on the Agency's right to assign employees and that this burden outweighs
the benefits provided to the employees.
Although we are cognizant of the employees' desire to retain their
PWB certification and proficiency, there are other means by which
employees can do so. As we noted previously, employees can maintain
their certifications by retaking and successfully completing the
pertinent portions of the certification examination. Accordingly, we
conclude that Proposal 2 does not constitute an appropriate arrangement
under section 7106(b)(3) of the Statute.
The petition for review is dismissed.
(1) The Union was advised that affected employees would be issued a
certificate of accomplishment indicating that they had successfully
completed PWB training.
(2) In light of our conclusion, it is unnecessary to address whether
the Union's explanation concerning the circumstances under which the
Agency retains the discretion to determine the level of user demand is
consistent with the language of the proposal.
46 FLRA 9
46 FLRA NO. 2
Bureau of Rec. Wash., D.C. & Mid-Pac. Reg. Sac., Calif. & Int. Bro.
of Elec. W. Local 1245; B. of Rec. Wash., D.C. & G. Coulee Prj., Wash.
& Col. Basin, AFL-CIO, Case Nos. 3-CA-00633 & 39-CA-00697 (Decided
October 5, 1992)
7116(a)(1), (5) and (8)
UNFAIR LABOR PRACTICE
The complaint in Case No. 3-CA-00633 alleged that Respondent Bureau
of Reclamation, Mid-Pacific Regional Office, Sacramento, California
(Respondent Mid-Pacific) violated section 7116(a)(1), (5) and (8) of the
Statute by: (1) withdrawing its recognition of the International
Brotherhood of Electrical Workers (IBEW), Local 1245 as the exclusive
bargaining representative of employees in the Local's mixed unit of
supervisory and nonsupervisory employees classified as Working Foreman
(Foreman II) and Foreman (Foreman III); (2) refusing to comply with
section 7115(a) of the Statute by discontinuing dues withholding for
employees in Foreman II and III positions; (3) placing employees in
Foreman II and III positions on an administrative pay scale; and (4)
ceasing to apply to employees in Foreman II and III positions the terms
and conditions of IBEW's collective bargaining agreement with Respondent
U.S. Department of the Interior, Bureau of Reclamation, Washington, D.C.
(Respondent Reclamation) and Respondent Mid-Pacific.
The complaint also alleged that Respondent Reclamation violated
section 7116(a)(1), (5) and (8) of the Statute by interfering with the
bargaining relationship of the parties at the level of exclusive
recognition when it directed Respondent Mid-Pacific to engage in the
conduct described above.
The complaint in Case No. 39-CA-00697 alleged that Respondent Bureau
of Reclamation, Grand Coulee Project Office, Grand Coulee, Washington
(Respondent Grand Coulee) violated section 7116(a)(1), (5) and (8) of
the Statute by: (1) withdrawing its recognition of the Columbia Basin
Trades Council, AFL-CIO (CBTC) as the exclusive bargaining
representative of employees in the CBTC's mixed unit of supervisory and
nonsupervisory employees classified as Foreman II and III; (2) refusing
to comply with section 7115(a) of the Statute by discontinuing dues
withholding for employees in Foreman II and III positions; (3) placing
employees in Foreman II and III positions on an administrative pay
scale; and (4) ceasing to apply to employees in Foreman II and III
positions, and to unit employees who have been temporarily upgraded to
Foreman II and Foreman III, the terms and conditions of CBTC's
collective bargaining agreement with Respondent Reclamation and
Respondent Grand Coulee.
The complaint also alleged that Respondent Reclamation violated
section 7116(a)(1), (5) and (8) of the Statute by interfering with the
bargaining relationship of the parties at the level of exclusive
recognition when it directed Respondent Grande Coulee to engage in the
conduct described above.
The Authority found that Respondent Reclamation violated the Statute
as alleged in the complaints in Case No. 3-CA-00633 and Case No.
39-CA-00697. Member Talkin wrote a dissenting opinion.
Case Nos. 3-CA-00633, 39-CA-00697
U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, WASHINGTON,
D.C.
BUREAU OF RECLAMATION, MID-PACIFIC REGIONAL OFFICE, SACRAMENTO,
CALIFORNIA
(Respondents)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
(Charging Party/Union)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1245
(Intervenor/Union)
U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, WASHINGTON,
D.C.
BUREAU OF RECLAMATION, GRAND COULEE PROJECT OFFICE, GRAND COULEE,
WASHINGTON
(Respondents)
COLUMBIA BASIN TRADES COUNCIL, AFL-CIO
(Charging Party/Union)
October 5, 1992
Before Chairman McKee and Members Talkin and Armendariz. /1/
This consolidated unfair labor practice case is before the Authority
in accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based on the parties' stipulation of facts. The General
Counsel, the Respondents, the Charging Parties, and the Intervenor filed
briefs with the Authority.
The complaint in Case No. 3-CA-00633 alleges that Respondent Bureau
of Reclamation, Mid-Pacific Regional Office, Sacramento, California
(Respondent Mid-Pacific) violated section 7116(a)(1), (5) and (8) of the
Federal Service Labor-Management Relations Statute (the Statute) by:
(1) withdrawing its recognition of the International Brotherhood of
Electrical Workers (IBEW), Local 1245 as the exclusive bargaining
representative of employees in the Local's mixed unit of supervisory and
nonsupervisory employees classified as Working Foreman (Foreman II) and
Foreman (Foreman III); (2) refusing to comply with section 7115(a) of
the Statute by discontinuing dues withholding for employees in Foreman
II and III positions; (3) placing employees in Foreman II and III
positions on an administrative pay scale; and (4) ceasing to apply to
employees in Foreman II and III positions the terms and conditions of
IBEW's collective bargaining agreement with Respondent U.S. Department
of the Interior, Bureau of Reclamation, Washington, D.C. (Respondent
Reclamation) and Respondent Mid-Pacific. The complaint also alleges
that Respondent Reclamation violated section 7116(a)(1), (5) and (8) of
the Statute by interfering with the bargaining relationship of the
parties at the level of exclusive recognition when it directed
Respondent Mid-Pacific to engage in the conduct described above.
The complaint in Case No. 39-CA-00697 alleges that Respondent Bureau
of Reclamation, Grand Coulee Project Office, Grand Coulee, Washington
(Respondent Grand Coulee) violated section 7116(a)(1), (5) and (8) of
the Statute by: (1) withdrawing its recognition of the Columbia Basin
Trades Council, AFL-CIO (CBTC) as the exclusive bargaining
representative of employees in the CBTC's mixed unit of supervisory and
nonsupervisory employees classified as Foreman II and III; (2) refusing
to comply with section 7115(a) of the Statute by discontinuing dues
withholding for employees in Foreman II and III positions; (3) placing
employees in Foreman II and III positions on an administrative pay
scale; and (4) ceasing to apply to employees in Foreman II and III
positions, and to unit employees who have been temporarily upgraded to
Foreman II and Foreman III, the terms and conditions of CBTC's
collective bargaining agreement with Respondent Reclamation and
Respondent Grand Coulee. The complaint also alleges that Respondent
Reclamation violated section 7116(a)(1), (5) and (8) of the Statute by
interfering with the bargaining relationship of the parties at the level
of exclusive recognition when it directed Respondent Grande Coulee to
engage in the conduct described above.
For the reasons set forth below, we find that Respondent Reclamation
violated the Statute as alleged in the complaints in Case No. 3-CA-00633
and Case No. 39-CA-00697. The other allegations of the complaints will
be dismissed.
Respondent Reclamation employs certain supervisory and nonsupervisory
prevailing rate employees. Respondent Mid-Pacific and Respondent Grand
Coulee are subordinate activities of Respondent Reclamation. Pursuant
to section 9(b) of the Prevailing Rate Systems Act of 1972 (PRSA), Pub.
L. No. 92-392, codified at 5 U.S.C. Section 5343 (Amendments, note) and
section 704 of the Civil Service Reform Act of 1978 (CSRA), Pub. L. No.
95-454, 92 Stat. 1111, 1218, codified at 5 U.S.C. Section 5343
(Amendments), Respondent Mid-Pacific and Respondent Grand Coulee
negotiate the wage rates of prevailing rate employees in bargaining
units represented by IBEW Local 1245 and CBTC, respectively. /2/ Prior
to the Respondents' actions which resulted in the filing of the unfair
labor practice complaints at issue in this consolidated case, the units
were mixed units, including both supervisory and nonsupervisory
prevailing rate employees. Respondent Reclamation had historically
negotiated on and agreed to the inclusion of supervisory employees in
Foreman II and III positions in mixed bargaining units under a
succession of agreements. See Department of the Interior, Bureau of
Reclamation, Yuma Projects Office, Yuma, Arizona, 8 A/SLMR 1247, 1248
(1978).
In 1977, Respondent Reclamation transferred certain prevailing rate
employees, including supervisory prevailing rate employees classified as
Foreman II and III, to the Department of Energy, Western Area Power
Administration (WAPA). See Department of Energy, Western Area Power
Administration, 3 FLRA 77, 78 (1980) (WAPA 1). /3/ The instant
consolidated case involves only employees in Foreman II and III
positions who remained in the Department of the Interior, not employees
who were transferred to the Department of Energy.
Based on the decision of the United States Court of Appeals for the
Tenth Circuit in United States Department of Energy, Western Area Power
Administration, Golden, Colorado v. FLRA, 880 F.2d 1163, 1170 (10th Cir.
1989) (WAPA v. FLRA), Respondent Reclamation directed Respondent
Mid-Pacific and Respondent Grand Coulee to remove the employees in
Foreman II and III positions from their respective bargaining units.
Following the Respondents' actions, the Unions filed the unfair labor
practice charges that are the bases of the complaints in the instant
consolidated case.
A. Case No. 3-CA-00633
The parties stipulated that IBEW Local 1245 "has been the exclusive
representative of a mixed unit of supervisory and nonsupervisory
(prevailing rate) employees for collective bargaining" at Respondent
Mid-Pacific's Central Valley Project. Stipulation, paragraph 6. See
Attachment to Joint Exhibit 1 (Old Agreement at 2, 6). Those
supervisory employees include employees classified as Foreman II and
III, who are "supervisors within the meaning of section 7103(a)(10) of
the Statute." Stipulation, paragraph 9. Employees classified as Foreman
II and III "had been included in the (mixed) unit . . . from 1963 to on
or about January 29, 1990. During this time (1963-January 29, 1990),
(IBEW) Local 1245 negotiated the pay, pay practices, and other
conditions of employment of the (employees classified as Foreman II and
III)." Stipulation, paragraph 9.
Since on or about January 29, 1990, and continuing to date, "at the
direction of" Respondent Reclamation, Respondent Mid-Pacific: (1)
withdrew its recognition of IBEW Local 1245 as the exclusive collective
bargaining representative of the supervisory employees classified as
Foreman II and III, "after giving notice of its intent to do so during
negotiations on December 21, 1989"; (2) discontinued IBEW's dues
withholdings of employees in Foreman II and III positions; (3) placed
employees in Foreman II and III positions on an administrative pay scale
pursuant to its request for Office of Personnel Management (OPM)
authority and subsequent OPM approval; and (4) ceased applying the
terms and conditions of IBEW's collective bargaining agreement with
Respondent Reclamation and Respondent Mid-Pacific to employees in
Foreman II and III positions. Stipulation, paragraphs 7-8.
By letters dated February 14, 1990, and April 2, 1990, IBEW, through
its International President, requested that Respondent Reclamation
continue its existing practice of "collective bargaining in mixed units
of employees at the Bureau of Reclamation." Stipulation, paragraph 10.
B. Case No. 39-CA-00697
Respondent Grand Coulee admits that CBTC "was recognized as the
exclusive representative of (the) mixed unit of (prevailing rate)
supervisory . . . and nonsupervisory employees for collective bargaining
at (Respondent Grand Coulee) in 1949." Case No. 39-CA-00697, Joint
Exhibit 3. This "voluntary recognition" served as the foundation of the
collective bargaining relationship between CBTC and Respondent Grand
Coulee. See Stipulation, paragraph 6. The parties stipulated that
"(t)here has been no break in continuity of the voluntary recognition or
the continuity of labor agreements (between CBTC and Respondent Grand
Coulee)." See id. Those supervisory employees included in the unit
include employees classified as Foreman II and III who are "supervisors
within the meaning of section 7103(a)(10) of the Statute." See id.,
paragraph 9. "Since 1949, (CBTC) and the Respondents have negotiated
pay, pay practices, and other conditions of employment for employees in
the unit . . . and have executed successive collective bargaining
agreements containing the outcome of collective bargaining negotiations"
which continued the mixed unit status of the supervisory foremen in the
unit. See id. However, since on or about June 3, 1990 such
negotiations have ended with regard to (Foreman II) and (Foreman III.)"
Stipulation, paragraph 9.
Further, since on or about June 3, 1990, and continuing to date, "at
the direction of" Respondent Reclamation, Respondent Grand Coulee: (1)
withdrew its recognition of CBTC as the exclusive collective bargaining
representative of the supervisory employees classified as Foreman II and
III "after giving notice of its intent to do so at the onset of
negotiations on April 30, 1990 and again, by letter of May 21, 1990";
(2) discontinued CBTC's dues withholdings of employees in Foreman II and
III positions; (3) placed employees in Foreman II and III positions on
an administrative pay scale pursuant to its request for OPM authority
and subsequent OPM approval; and (4) ceased applying the terms and
conditions of CBTC's collective bargaining agreement with Respondent
Reclamation and Respondent Grand Coulee to employees in Foreman II and
III positions in accordance with its May 21, 1990, letter and to unit
employees temporarily upgraded to Foreman II and III positions.
Stipulation, paragraphs 7-8.
A. General Counsel
The General Counsel contends that the Authority "may reject the Tenth
Circuit's rule(,)" as set forth in WAPA v. FLRA, "in the instant case."
General Counsel's Brief at 6 (emphasis omitted). The General Counsel
asserts that the Authority should exercise "its 'discretion to determine
whether to adopt (a circuit court's) ruling in subsequent cases raising
the same issue . . . when, as here, those cases may be subject to review
in other circuits.'" Id. at 9 (quoting U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 523
(1990), enforcement denied as to other matters, 941 F.2d 49 (1st Cir.
1991) (alteration supplied by General Counsel)). The General Counsel
contends that the Authority should reject the Tenth Circuit's decision
in WAPA v. FLRA, and should "reaffirm its interpretation of section 704
(of the CSRA) which (the Authority) has previously set forth" in WAPA 1,
WAPA 2, WAPA 3, and WAPA 4. Id. at 6, 12.
The General Counsel asserts that the Authority's decisions in WAPA 1,
WAPA 2, WAPA 3, and WAPA 4 contain the proper interpretation of the
application of section 704 of the CSRA as it applies to the foremen
involved in these cases. Specifically, the General Counsel states that
"(t)he foremen at issue in the instant cases are prevailing rate
employees within the meaning of section 704" of the CSRA. Id. at 10
(emphasis omitted). Further, the General Counsel states that while it
is "undisputed that the foremen at issue are supervisors within the
meaning of (s)ection 7103(a)(10) of the Statute(,)" it is also
"undisputed that exclusive representatives representing these foremen
had historically negotiated pay, pay practices, and other conditions of
employment as part of 'mixed units'." Id. (footnote omitted). The
General Counsel urges the Authority to allow these foremen to continue
as part of a mixed unit.
Accordingly, the General Counsel requests the Authority to find that
the "Respondents' withdrawal of the section 704 rights of the foremen in
the instant cases is violative of the Statute." Id. at 11 (emphasis
omitted). Further, the General Counsel requests that the Authority find
that by directing Respondent Mid-Pacific and Respondent Grand Coulee to
engage in the violative conduct, Respondent Reclamation violated the
Statute. Finally, the General Counsel requests that the Authority
"issue an order, fully remedial of all unlawful conduct." Id. at 13.
B. Unions
1. IBEW and Local 1245 /4/
IBEW states that the employees involved in Case No. 3-CA-00633 are
located "in the State of California, outside the geographic jurisdiction
of the U.S. Court of Appeals for the Tenth Circuit." IBEW's Brief at 2.
In this regard, IBEW asserts that the issues presented in WAPA v. FLRA
have not been ruled on by any court other than the Tenth Circuit and
contends that the Tenth Circuit's decision in WAPA v. FLRA, "which
presents no reasons that had not already been presented by the (a)gency
and rejected by the Authority, is erroneous as a matter of law on
several grounds(.)" Id. at 4.
As an initial matter, IBEW claims that the court improperly failed to
give deference to the Authority's interpretation of section 704 of the
CSRA "on the fallacious ground that (s)ection 704 'is not part of the
(Statute,)' but 'is set forth as a note to (s)ection 5343 of the (PRSA)'
which . . . is under the enforcement and interpretation purview" of OPM.
Id. at 11 (citing WAPA v. FLRA, 880 F.2d at 1166 & n.4). IBEW states
that the Statute is Title VII of the CSRA and includes section 704 of
the CSRA.
Further, IBEW contends that in WAPA v. FLRA the court misinterpreted
section 7135(a) of the Statute. /5/ First, IBEW claims that the court
erroneously interpreted subsection (2) of section 7135(a). Second, IBEW
claims that, although the court recognized that section 24 of Executive
Order 11491 -- which contains language almost identical to section
7135(a) of the Statute -- was interpreted by the Assistant Secretary of
Labor for Labor-Management Relations differently from the court's
interpretation of section 7135(a), the court ignored the fact that the
Assistant Secretary relied on section 24 of the Executive Order "in its
entirety, including (s)ection 24(1) which was identical, in material
respects, to (s)ection 7135(a)(1)" of the Statute. Id. at 13. IBEW
asserts that, in rejecting the Assistant Secretary's interpretation of
what is now, in essence, section 7135(a), the court failed to take into
consideration the fact that section 7135(a)(1) "provides an independent
legal basis for the preservation of historic mixed units." Id.
Finally, IBEW contends that the court "commits its most grievous
error" in its interpretation of section 704 of the CSRA. Id. at 13
(citing WAPA v. FLRA, 880 F.2d at 1168, 1170). IBEW asserts that the
court erred as a matter of law in holding that the rights set forth in
section 704 are "subject to the consent of the employer." Id. at 14.
Accordingly, asserting that the Authority "has full discretion to
determine whether to follow" WAPA v. FLRA, IBEW request that the
Authority "not acquiesce" to the Tenth Circuit's decision in WAPA v.
FLRA, but rather "adhere to its own previous decisions on the important
underlying issue presented by the instant case." Id. at 11, 15. IBEW
contends that the Authority should determine that Respondent Mid-Pacific
and Respondent Reclamation committed the unfair labor practices as
alleged. Further, as a remedy, IBEW requests that the Authority
"provide the type of relief granted by (the Authority) in (WAPA 3)." Id.
at 16. Additionally, IBEW requests "appropriate relief" to remedy
Respondent Reclamation's improper direction to Respondent Mid-Pacific to
"engage in the acts and conduct determined to be unlawful." Id.
2. CBTC
CBTC argues that in enacting section 704 of the CSRA and section
7135(a)(1) of the Statute, Congress "preserved the right of supervisors
covered by section 9(b) of the Prevailing Rate Systems Act to (belong)
to recognized units and to renew labor contracts." CBTC's Brief at 3
(emphasis omitted). Therefore, CBTC asserts that Respondent Reclamation
and Respondent Grand Coulee were "barred from unilaterally removing
(the) foreman positions(, which are within the scope of section 9(b),)
from the unit." Id. (emphasis omitted).
CBTC states that the Tenth Circuit's decision in WAPA v. FLRA "is
inconsistent with the plain meaning of (s)ection 704 (of the CSRA) and
should not be followed." Id. at 13. CBTC contends that the court's
decision in WAPA v. FLRA, "(i)n the guise of interpreting the statute, .
. . destroyed the very rights the statute was designed to protect." Id.
CBTC argues that "(c)ontrary to the Tenth Circuit's reasoning, an agency
has the duty to bargain over employment terms with (s)ection 9(b)
supervisors in mixed units even though it is not obliged to carry
forward any particular contract provision." Id. at 16. Further, CBTC
asserts that the Authority's application of section 704 to the "mixed
unit" issue in WAPA 3 "was correct." Id. at 15.
Finally, CBTC contends that section 7135(a)(1) of the Statute "was
not relied upon by the Authority in the WAPA litigation and was not
discussed by the Tenth Circuit." Id. at 21. According to CBTC, section
7135(a)(1) "provides an independent basis for ruling that the mixed unit
is lawful." Id.
CBTC asserts that the Authority is "not required to defer to circuit
court authority in later cases raising the same legal issues" and urges
the Authority not to defer to the Tenth Circuit's view of the issues
raised in Case No. 39-CA-00697. Id. at 13. Further, CBTC notes that it
was not a party to the Tenth Circuit's decision in WAPA v. FLRA and that
"the situs of its dispute (is not) within the territorial jurisdiction
of the Tenth Circuit." Id. at 14. Accordingly, CBTC argues that it
"should be permitted its 'day in court.'" Id.
In conclusion, CBTC contends that Respondent Grand Coulee's and
Respondent Reclamation's unilateral withdrawal of recognition of the
foremen involved in Case No. 39-CA-00697 violates section 7116(a)(1) and
(5) of the Statute. CBTC requests that, in addition to the usual cease
and desist orders, the Authority specifically address the following two
remedial issues:
First, the (Respondent Reclamation) should be directed
specifically to remedy those actions summarized in paragraph
7(a)-(e) of the stipulation (in Case No. 39-CA-00697). Second,
the Authority should order a retroactive remedy as it did in (WAPA
3). The retroactive date should extend to June 3, 1990, the
effective date of (Respondent Grand Coulee's and Respondent
Reclamation's) unlawful action.
Id. at 27.
C. Respondents
Relying on the Tenth Circuit's decision in WAPA v. FLRA and the
Authority's subsequent decisions in WAPA 5 and WAPA 6, the Respondents
contend that they did not commit the unfair labor practices alleged in
the complaints in this consolidated case.
The Respondents state that in WAPA v. FLRA, the Tenth Circuit
construed the Statute "as prohibiting the inclusion of supervisors in
mixed units" and section 9(b) of the PRSA and section 704 of the CSRA
"as not preserving mixed bargaining units." Respondents' Brief at 9
(emphasis omitted). The Respondents contend that "(s)ince the facts of
these consolidated cases are similar to those in WAPA (v. FLRA), . . .
WAPA (v. FLRA) is dispositive of these cases." Id. at 14. The
Respondents note that the court held that, "at most, section 704 permits
the recognition of supervisors in mixed units only if the agency
agrees." Id. The Respondents state that "(h)ere, as in WAPA (v. FLRA),
Respondents elected not to agree to continue to bargain with supervisors
in mixed units and so advised the (IBEW Local 1245 and CBTC),
respectively, at the outset of renegotiations of their respective
collective bargaining agreements, Respondents cannot be found guilty of
an unfair labor practice for refusing to bargain with mixed units of
supervisory and nonsupervisory employees." Id. at 15 (citing WAPA v.
FLRA, 880 F.2d at 1172).
Further, the Respondents assert that in WAPA 5 and WAPA 6, the
Authority concluded that, consistent with WAPA v. FLRA, the bargaining
unit involved in those cases did "not include supervisory employees
because (WAPA) refused to recognize them in the unit." Id. Accordingly,
the Respondents state that in WAPA 5 and WAPA 6 the Authority found that
"the agency had no duty to bargain with the (IBEW Local 1245 and CBTC)
on behalf of such employees on pay or conditions of employment." Id. at
15-16. The Respondent contends that "the same decision must be reached
in these cases because the facts and principles of law are similar." Id.
at 16. Accordingly, the Respondents claim that because they elected not
to recognize the supervisors, they had "no obligation to bargain with
the (IBEW Local 1245 and CBTC) on behalf of the (employees in Foreman II
and III positions) once Respondents exercised their elective right (not
to) agree to mixed bargaining units when the agreements came up for
renewal or renegotiations." Id.
In conclusion, the Respondents request that the unfair labor practice
complaints in this consolidated case be dismissed.
Resolution of this case requires us to consider section 9(b) of the
PRSA, section 704 of the CSRA, and the Statute. Upon consideration of
these statutory provisions and the entire record in this case, we
conclude that the Respondent Reclamation violated the Statute as alleged
in the complaints in Case No. 3-CA-00633 and Case No. 39-CA-00697. The
other allegations of the complaints will be dismissed.
A. Section 9(b) of the PRSA
In enacting section 9(b) of the PRSA, Congress intended to preserve
the scope and substance of collective bargaining agreements between
representatives of certain prevailing rate employees and Federal
agencies entered into by the parties that were in effect on the date of
the enactment of the PRSA. In addressing the intended effect of section
9(b), the House report stated that:
Section 9(b) . . . provides that amendments made by the (PRSA)
shall not be construed to affect the provisions of an existing
contract which resulted from negotiations between agencies and
employee organizations. This amendment strengthens the language
of section 9(b) of the introduced bill and adds two new
paragraphs. The new paragraph (2) provides that the provisions of
the contracts which were in effect on the date of enactment of the
Act may be renewed, extended, modified or improved through
negotiation after the enactment date of this Act. The new
paragraph (3) provides that the Act shall not affect any existing
agreement between agencies and employee organizations regarding
the various items which are negotiable, nor shall the Act preclude
the inclusion of new items in connection with the renegotiation of
any contract.
H.R. Rep. No. 339, 92d Cong., 1st Sess. 5 (1971). The report further
stated:
The provisions of section 9(b) are directed at those groups of
Federal employees whose wages and other terms or benefits of
employment are fixed in accordance with contracts resulting from
the negotiations between their agencies and employee organizations
. . . . It is not this committee's intent to affect, in any way,
the status of such contracts or to impair the authority of the
parties concerned to renegotiate existing contracts or enter into
new agreements.
Id. at 22. Additionally, the Senate report stated as follows: "Section
9(b) is a savings clause to prevent the disruption or modification of
existing wage board bargaining agreements now in effect." S. Rep. No.
791, 92d Cong., 2d Sess. 6 (1972).
B. Section 704 of the CSRA
Section 704 of the CSRA establishes certain bargaining rights for
prevailing rate employees "to whom section 9(b) of Public Law 92-392
applies." Section 704 provides, in relevant part, that the terms and
conditions of employment and other employment benefits of these
prevailing rate employees that were the subject of negotiation in
accordance with prevailing rates and practices prior to August 19, 1972,
shall be negotiated after the enactment of the CSRA without regard to
the provisions of the Statute. /6/ The terms of sections 704 and 9(b),
supported by the legislative history of those provisions, authorize
parties who had negotiated over a subject matter prior to August 19,
1972, to continue existing contractual terms concerning that subject
matter or to modify or improve them when negotiating a new agreement,
without regard to any restrictions contained in the Statute. Columbia
Power Trades Council and United States Department of Energy, Bonneville
Power Administration, 22 FLRA 998 (1986) (Bonneville Power
Administration). See National Federation of Federal Employees, Local
341 and U.S. Department of the Interior, Bureau of Indian Affairs,
Wapato Irrigation Project, Wapato, Washington, 39 FLRA 1272, 1273,
reconsideration as to other matters denied, 40 FLRA 1009 (1991). See
also United States Information Agency, Voice of America v. FLRA, 895
F.2d 1449, 1453 (D.C. Cir. 1990).
In particular, the legislative history of section 704 demonstrates
that Congress intended to preserve certain collective bargaining
relationships that had developed over many years and were protected
under section 9(b) of the PRSA. The House Report stated that:
(Section 704) is intended to preserve the existing right of
certain Federal prevailing rate employees to negotiate terms and
conditions of employment. The committee intends that this
subsection preserve unchanged the scope and substance of the
existing collective bargaining relationship between the employees'
representatives and the agencies involved. The subsection
excludes these employees from the restrictions on the scope of
collective bargaining under chapter 71, and grants them authority
to negotiate pay and pay practices without regard to any
provisions of chapters 51, 53, and 55 of title 5, or other
provisions relating to rates of pay or pay practices with respect
to Federal employees.
H.R. Rep. No. 1403, 95th Cong., 2d Sess. 61-62 (1978), reprinted in
Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print
1979), at 675, 707-08 (Legislative History).
The Conference Committee, in adopting an amended version of the House
provision of section 704, stated that:
(Section 704) provides specific statutory authorization for the
negotiation of wages, terms and conditions of employment and other
employment benefits traditionally negotiated by these employees in
accordance with prevailing practices in the private sector of the
economy. (Section 704) authorizes and requires agencies to
negotiate on any terms and conditions of employment which were the
subject of negotiations prior to August 19, 1972, the date of
enactment of Public Law 92-392 (the PSRA). (Section 704(a)) may
not be construed to nullify, curtail, or otherwise impair the
right or duty of any party to negotiate for the renewal,
extension, modification, or improvements of benefits negotiated.
Conf. Rep. No. 1717, 95th Cong. 2d Sess. 159 (1978) (also printed as S.
Rep. No. 95-1272, dated Oct. 4, 1978), reprinted in Legislative History
at 793, 827.
C. The Application of Section 9(b) of the PSRA and Section 704 of
the CSRA to this Case
By enacting section 9(b) and section 704, Congress intended to
authorize and require affected agencies that had negotiated, in
accordance with prevailing practices, terms and conditions of employment
and other employment benefits prior to August 19, 1972, to continue to
negotiate with the exclusive representatives of their employees on those
matters. See Mid-Pacific, 43 FLRA at 1156-57. Section 9(b) and section
704 gave agencies and unions specific authorization to modify or improve
previously agreed upon matters when negotiating a new agreement, without
regard to any restrictions contained in the Statute. See id. As
pointed out above, the legislative history of section 9(b) indicates
that Congress intended neither "to affect, in any way, the status of . .
. contracts (affecting these units,) . . . to impair the authority of
the parties concerned to renegotiate existing contracts or enter into
new agreements(,)" nor to "disrupt . . . or modif(y) . . . existing wage
board agreements" which were in effect prior to the enactment of the
PRSA. H.R. Rep. No. 339, 92d Cong., 1st Sess. 22; S. Rep. No. 791, 92d
Cong. 2d Sess. 6.
In our view, the wording of the savings clauses enacted by Congress
was broad and included matters relating to employees' unit status, and
benefits derived from that unit status, before section 9(b) of the PRSA
was enacted. We conclude that Congress intended section 9(b) to include
all matters that had been negotiated prior to August 19, 1972, rather
than to restrict bargaining by excluding from the scope of the
obligation to bargain some matters that had been negotiated previously.
Stated otherwise, Congress' use of the phrase "terms and conditions of
employment and other employment benefits" was simply a way of describing
all matters that parties had negotiated, and was not a limitation
designed to exclude some matters from negotiation.
Further, inasmuch as section 704(a) merely carries forward section
9(b), without mandating the exclusion of provisions of the contract or
employment benefits that relate to unit status, there is no basis on
which to conclude that Congress intended to preclude negotiations over
previously negotiated benefits associated with the composition of the
bargaining unit. As emphasized above, the pertinent legislative history
indicates that section 704 was intended to "preserve unchanged the scope
and substance of the existing collective bargaining relationship between
(certain prevailing rate) employees' representatives and the agencies
involved" that had developed historically under section 9(b) and to not
only exclude these employees from generally applicable wage-fixing
policies, but also to "exclude . . . these employees from the
restrictions on the scope of collective bargaining under (the Statute.)"
Legislative History at 707-08. Additionally, the pertinent legislative
history demonstrates that Congress considered the affected parties'
mutual rights and obligations in this regard to be mandatory and so
specified by stating that section 704 "authorizes and requires agencies
to negotiate on any terms and conditions of employment that were the
subject of negotiations prior to August 19, 1972(.)" Id. at 827.
In our view, nothing in the plain wording or the legislative history
of section 9(b) and section 704 demonstrates that Congress made a
distinction among subject matters preserved for negotiation under these
sections when the conditions for negotiations are met. Thus, noting
particularly Congress' use of the phrase "other employment benefits" in
section 704, we conclude that Congress did not intend to exclude a
matter from negotiations simply because it concerned a subject that was
not a traditional subject of private sector negotiations under the
National Labor Relations Act or Federal sector negotiations under the
Statute. Additionally, we find no basis in section 9(b) and section 704
for concluding that some subjects preserved for negotiation may be
negotiated only if the agency involved consents to such negotiations.
In other words, there is no basis to conclude that traditional subjects
of negotiation were to be considered mandatory, while nontraditional
subjects of negotiation, such as the composition of the bargaining unit,
were to be considered permissive. Rather, by enacting section 9(b) and
section 704, Congress sought to require agencies to which those
provisions applied to negotiate on request on any matters that were the
subject of negotiations prior to August 19, 1972. Therefore, we
conclude that any subjects preserved for negotiation under section 9(b)
and section 704 are mandatory subjects of bargaining.
D. Duty to Bargain
It is undisputed that employees in Foreman II and III positions
involved in this consolidated case are prevailing rate employees covered
by section 9(b) of the PRSA and section 704 of the CSRA. It is also
undisputed that employees in Foreman II and III positions are
supervisors within the meaning of section 7103(a)(10) of the Statute.
Moreover, the parties' collective bargaining history demonstrates that
employees in Foreman II and III positions were included by agreement of
the parties in units of prevailing rate employees represented by IBEW
Local 1245 and CBTC prior to August 19, 1972. Further, it is undisputed
that IBEW Local 1245 and CBTC negotiated the pay, pay practices, and
other conditions of employment of employees in Foreman II and III
positions prior to August 19, 1972.
It is also undisputed in this case that since 1949 and 1963 CBTC and
IBEW, respectively, have represented units of Respondents' employees
that included the Foreman II and III positions. Therefore, based on the
record before us in this consolidated case, we find that the parties in
this case historically negotiated and agreed to the composition of the
units at issue in this case. In addition, since those dates, CBTC and
IBEW have represented employees in the Foreman II and III positions in
negotiations with the Respondents over those employees' "pay, pay
practices, and other conditions of employment(.)" Stipulations,
paragraph 9. In our view, consistent with our discussion above
concerning section 9(b) of the PRSA and section 704 of the CSRA, if the
inclusion of employees in Foreman II and III positions in those units
was a subject of negotiation between the parties before August 19, 1972,
Respondent Mid-Pacific and Respondent Grand Coulee were obligated to
bargain with IBEW Local 1245 and CBTC, respectively, concerning that
matter, notwithstanding the fact that inclusion of employees in Foreman
II and III positions in those units would conflict with section 7112 of
the Statute.
Based on the stipulations in this case, we find that the inclusion of
employees in Foreman II and III positions in the respective IBEW Local
1245 and CBTC bargaining units was a subject of negotiation between the
parties prior to August 19, 1972. Further, we find that the inclusion
of those employees in those units concerns a term and condition of
employment or other employment benefit of the employees within the
meaning of section 9(b) of the PRSA and section 704 of the CSRA. We
find, therefore, that, under section 9(b) of the PRSA and section 704 of
the CSRA, the inclusion of employees in Foreman II and III positions in
the respective bargaining units is a mandatory subject of bargaining.
Consequently, we conclude that Respondent Mid-Pacific and Respondent
Grand Coulee were obligated to bargain with IBEW Local 1245 and CBTC,
respectively, over the substance of the decision to remove employees in
Foreman II and III positions from their respective bargaining units,
notwithstanding the fact that mixed units are precluded under sections
7105(a)(2)(A) and 7112 of the Statute. See, for example, Bonneville
Power Administration, 22 FLRA at 1006 (the agency was required to
negotiate on provisions that pertained to terms and conditions of
employment of unit employees within the meaning of section 704 which
were subject to negotiations between the agency and union prior to
August 19, 1972, notwithstanding their possible conflict with the
Statute). See also U.S. Department of the Interior, Bureau of
Reclamation, Great Plains Region and International Brotherhood of
Electrical Workers, Local 1759, 42 FLRA 902, 916-18 (1991),
reconsideration denied, 43 FLRA 314 (1991).
E. WAPA v. FLRA
The Respondents contend that its exclusion of employees in Foreman II
and III positions from the units at issue in this case is warranted
under the court's decision in WAPA v. FLRA. It is not clear to us that
the court's decision in WAPA v. FLRA either must or should be read to
permit the unilateral exclusion of the Foreman II and III positions from
the units at issue in the circumstances of the consolidated case before
us. In any event, to the extent that the decision in WAPA v. FLRA holds
that section 704 of the CSRA does not permit negotiations over the
continuation of mixed units under any circumstances or that such
negotiations may occur only if consented to by an agency, we
respectfully disagree for the reasons stated above. As demonstrated in
our discussion of the intent of Congress in enacting section 9(b) of the
PRSA and section 704 of the CSRA, Congress intended to require agencies
to bargain on request on matters that were the subject of negotiation
before August 19, 1972. Moreover, by its terms, section 704 applies
regardless of any inconsistency with the Statute. Accordingly, we
respectfully disagree with the court's determination in WAPA v. FLRA
that section 704 of the CSRA does not constitute an exception to section
7112 of the Statute.
F. Violations of the Statute
Because the Respondents had bargained on and agreed to the inclusion
of employees in Foreman II and III positions in the units represented by
IBEW Local 1245 and CBTC prior to August 19, 1972, the inclusion of
those employees in those units was a mandatory subject of bargaining
under section 704 and the Respondents were obligated to bargain on any
decision to exclude those employees from the respective units. See, for
example, U.S. Department of the Interior, Bureau of Reclamation,
Missouri Basin Region and International Brotherhood of Electrical
Workers, Local 1759, 42 FLRA 820, 831 (1991) (an agency was not
justified in unilaterally terminating a provision, which was established
in accordance with section 704, in the parties' existing agreement
before it completed bargaining over the subject matter of the provision
as required under the parties' collective bargaining agreement),
reconsideration denied, 43 FLRA 380 (1991), petition for review filed,
No. 92-9503 (D.C. Cir. Jan. 23, 1992). Consequently, the Respondents
were precluded from unilaterally withdrawing their agreed-upon
recognition of the Unions as the exclusive representative of employees
in Foreman II and III positions.
Moreover, we note that the Respondents also had negotiated on and
agreed to the terms and conditions of employment and other employment
benefits of those employees in Foreman II and III positions in the
respective bargaining units. Specifically, we note that from 1963 (with
respect to Respondent Mid-Pacific and IBEW Local 1245) and from 1949
(with respect to Respondent Grand Coulee and CBTC) until the
Respondents' unilateral withdrawal of recognition from the Unions as the
exclusive representatives of employees in Foreman II and III positions,
the Unions negotiated collective bargaining agreements with the
Respondents establishing the terms and conditions of employment,
including pay and pay practices, of employees in the Foreman II and III
positions in their respective mixed units. Just as the Respondents
could not unilaterally terminate their recognition of the Unions as the
exclusive representatives of employees in Foreman II and III positions
in their respective units in the circumstances of these cases, the
Respondents also could not unilaterally terminate, under these
circumstances, the application of the parties' collective bargaining
agreements to employees in Foreman II and III positions.
We find, therefore, that in these circumstances, Respondent
Mid-Pacific and Respondent Grand Coulee had an obligation to: (1)
continue their recognition of IBEW Local 1245 and CBTC, respectively, as
the exclusive bargaining representatives of employees in Foreman II and
III positions in their units of exclusive recognition; (2) apply the
parties' respective collective bargaining agreements to employees in
those positions; and (3) pay employees in those positions under the pay
scale that had been negotiated for those positions under the parties'
respective collective bargaining agreements. Further, we find, with
respect to Respondent Grand Coulee, that it had an obligation to
continue to apply the parties' collective bargaining agreement to
employees temporarily upgraded to the positions of Foreman II and III.
However, Respondent Mid-Pacific and Respondent Grand Coulee
unilaterally withdrew their recognition of the Unions as the exclusive
representatives of employees in Foreman II and III positions and
unilaterally terminated the application of the parties' collective
bargaining agreements, including the wage provisions, to employees in
those positions. We find that Respondent Mid-Pacific's and Respondent
Grand Coulee's unilateral withdrawal of recognition from IBEW Local 1245
and CBTC as the exclusive representatives of employees in Foreman II and
III positions, and the accompanying refusal to apply the parties'
collective bargaining agreements to those employees, constituted a
repudiation of the parties' respective collective bargaining agreements
and violates the good-faith bargaining obligation under section
7116(a)(1) and (5) of the Statute. See Department of Defense, Warner
Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA
1211, 1218-20 (1991) ("Where the nature and scope of the breach (of an
agreement) amount to a repudiation of an obligation imposed by the
agreement's terms, we will find that an unfair labor practice has
occurred in violation of the Statute."); United States Department of
Agriculture, Washington, D.C. and United States Department of
Agriculture, Farmers Home Administration, Little Rock, Arkansas, 24 FLRA
682, 686 (1986) (FHA, Little Rock) (the repudiation of a provision of
the parties' agreement was inconsistent with the activity's good-faith
bargaining obligation in violation of the Statute).
Specifically, we find that Respondent Mid-Pacific's and Respondent
Grand Coulee's unilateral withdrawal of recognition from the Unions as
the exclusive representatives of employees in Foreman II and III
positions constituted a total repudiation of the Respondents'
obligations to employees in those positions under the parties'
respective collective bargaining agreements. Consequently, we conclude
that the Respondents' conduct in this regard amounts to a complete
rejection of the statutory requirement to bargain in good faith. The
nature and scope of the Respondent Mid-Pacific's and Respondent Grand
Coulee's refusal went to the heart of the agreement and the collective
bargaining relationship itself and, therefore, amounted to a repudiation
of the obligation imposed by the terms of the parties' respective
agreements in violation of section 7116(a)(1) and (5) of the Statute.
See Department of the Interior, Water and Power Resources Service, Grand
Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982) (Grand
Coulee Project).
Further, we find that Respondent Mid-Pacific's and Respondent Grand
Coulee's unilateral discontinuance of dues withholding for employees in
Foreman II and III positions in their respective units constituted a
refusal to comply with section 7115(a) of the Statute, in violation of
section 7116(a)(1) and (8) of the Statute. See, for example, U.S.
Department of the Treasury, U.S. Mint, 35 FLRA 1095 (1990) (U.S. Mint)
(respondent's failure to comply with the requirements of section 7115(a)
to honor the assignments from employees in an appropriate unit and to
make appropriate allotments pursuant to the assignments violated section
7116(a)(1) and (8) of the Statute).
In light of our findings, we need not address CBTC's contention that
section 7135(a)(1) of the Statute "provides an independent basis for
ruling that the mixed unit is lawful." See CBTC's Brief at 21.
G. Responsibility for Violations of the Statute
The parties stipulated that Respondent Mid-Pacific and Respondent
Grand Coulee engaged in the above-described conduct at the direction of
Respondent Reclamation. When management at a higher level in an agency
directs or requires management at a subordinate level of exclusive
recognition to act in a manner that is inconsistent with the subordinate
level's bargaining obligations under the Statute, the higher-level
management entity violates section 7116(a)(1) and (5) of the Statute.
See, for example, FHA, Little Rock, 24 FLRA at 686; Grand Coulee
Project.
Accordingly, because Respondent Reclamation directed Respondent
Mid-Pacific and Respondent Grand Coulee to engage in conduct that
violated their obligation to bargain with the Unions as the exclusive
representatives of employees in Foreman II and III positions, we find
that Respondent Reclamation violated section 7116(a)(1) and (5) of the
Statute by interfering with the bargaining relationship of the parties
at the level of exclusive recognition. We further conclude that in
directing Respondent Mid-Pacific and Respondent Grand Coulee to
discontinue the dues withholding of employees in Foreman II and III
positions, Respondent Reclamation committed a violation of section
7116(a)(1) and (8) of the Statute.
Moreover, because it is undisputed that the decision to engage in the
above-described conduct was based on directions received from Respondent
Reclamation, we find that Respondent Mid-Pacific and Respondent Grand
Coulee were acting in a ministerial capacity and without discretion when
they engaged in the above-described conduct. Consequently, we conclude
that Respondent Mid-Pacific and Respondent Grand Coulee did not commit
the unfair labor practices alleged in the complaints. See, for example,
Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA 1381,
1392 (1991); FHA, Little Rock; 24 FLRA at 686-87. Consequently, we
will dismiss the complaints as to Respondent Mid-Pacific and Respondent
Grand Coulee.
The General Counsel, Charging Parties, and the Intervenor have
requested that we issue an order that fully remedies all unlawful
conduct. In addition, CBTC has requested that the order be retroactive
to the effective date of the unlawful action. We interpret CBTC's
request as a request that we return the parties to the status quo at the
time of the Respondents' unlawful action.
Where management changes a condition of employment without fulfilling
its obligation to bargain over the change, the Authority grants a status
quo ante remedy in the absence of special circumstances. See, for
example, Federal Deposit Insurance Corporation, 41 FLRA 272, 279 (1991);
U.S. Department of Labor, Washington, D.C., 38 FLRA 899, 913 (1990).
See also National Treasury Employees Union v. FLRA, 910 F.2d 964, 969
(D.C. Cir. 1990). We note that no special circumstances are alleged in
this case and none are apparent to us. Accordingly, we find that a
return to the status quo ante is appropriate to remedy the Respondents'
unfair labor practices.
Consequently, we will order Respondent Reclamation to direct
Respondent Mid-Pacific and Respondent Grand Coulee to restore their
recognition of IBEW Local 1245 and CBTC, respectively, as the exclusive
representatives of units that include employees in Foreman II and III
positions, and to apply the parties' collective bargaining agreements,
including the wage and benefits provisions, to employees in those
positions. The respective collective bargaining agreements shall be
applied retroactively to the effective date of the Respondents' unlawful
change in conditions of employment. If the parties have enacted a new
agreement with respect to the bargaining unit, the Respondents will
apply the terms of the new agreement as of its effective date.
Moreover, from the time that the Respondents withdrew employees in
Foreman II and III positions from the coverage of the parties'
collective bargaining agreements, employees in those positions were
deprived of access to the negotiated grievance procedure. Consequently,
the Respondents should retroactively waive the time limits for filing
grievances under their collective bargaining agreement to allow
employees in Foreman II and III positions to grieve matters that they
would otherwise have been able to grieve had they been covered by the
agreement. See Panama Canal Commission, Balboa, Republic of Panama, 43
FLRA 1483 (1992), request for reconsideration denied, 45 FLRA No. 109.
Further, where, during this period, the parties bargained on and
agreed to new terms and conditions of employment for employees in the
Unions' respective units that would otherwise have applied to employees
in Foreman II and III positions, the Respondents shall apply those terms
and conditions to employees who were in those positions, including
affording them the right to grieve those matters. To the extent that
additional bargaining is required to determine how those terms and
conditions of employment should be applied to employees in Foreman II
and III positions -- for example, the appropriate wage increment for
employees in those positions in relation to the wage rates for other
unit employees -- or to address other matters relevant to Foreman II and
III positions, the Respondents must bargain with the Unions and apply
any agreements reached retroactively to the date of the new agreement
covering the bargaining unit.
We will also order Respondent Reclamation to direct Respondent
Mid-Pacific and Respondent Grand Coulee to reinstate dues withholdings
for employees in Foreman II and III positions. Under section 7115(a),
once an employee is included in a bargaining unit, an agency is
obligated to honor a dues assignment from that employee and make an
appropriate allotment. The stipulation in this case states that
Respondent Mid-Pacific and Respondent Grand Coulee, at the direction of
Respondent Reclamation, refused to honor such assignments from employees
in Foreman II and III positions or to make any appropriate allotments to
IBEW Local 1245 and CBTC, respectively. We find that, in the
circumstances of this consolidated case, the Unions are entitled to
moneys that should have been withheld from employees had dues
withholding been in force. Accordingly, we conclude that a remedy
ordering reimbursement to the Unions for the dues that they would have
received if Respondent Mid-Pacific and Respondent Grand Coulee had not
unlawfully discontinued the dues withholding of employees in Foreman II
and III positions in the Unions' respective units is authorized under
the Statute. See U.S. Mint, 35 FLRA at 1100 ("The remedy for failing to
comply with section 7115(a) properly includes a requirement that an
agency reimburse a union for the dues it would have received but did not
as a result of the unlawful conduct.").
Finally, we conclude that backpay is an appropriate remedy to make
whole any employee who suffered a withdrawal or reduction in pay,
allowances, or differentials as a result of the Respondents' unlawful
actions. In U.S. Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland and U.S. Department of
Health and Human Services, Social Security Administration, Hartford
District Office, Hartford, Connecticut, 37 FLRA 278 (1990) (DHHS, SSA),
we set forth an approach for determining when, in addition to a status
quo ante award, backpay would be appropriate in "cases involving changes
in conditions of employment resulting from unlawful refusals to bargain,
regardless of whether the status quo ante award stems from a refusal to
bargain over (the substance of) a decision or from an analysis conducted
under Federal Correctional (Institution, 8 FLRA 604 (1982)) concerning a
failure to engage in impact and implementation bargaining." DHHS, SSA,
37 FLRA at 291. We stated that in such cases, if we determine that "the
agency's actions resulted in a withdrawal or reduction in pay,
allowances or differentials of identifiable employees, we will then
order the agency to make such employees whole for that withdrawal or
reduction." Id. at 292. We further stated that we would "leave to the
compliance stage any questions as to the actual amount to be paid." Id.
(footnote omitted).
We conclude that the Respondents' refusal to apply the terms and
conditions of the Unions' collective bargaining agreements with the
Respondents to the employees in Foreman II and Foreman III positions
resulted in a withdrawal or reduction in pay, allowances, or
differentials which the employees in Foreman II and Foreman III
positions had been receiving prior to the change. For example, the
record shows that after the Respondents withdrew employees in Foreman II
and III positions from coverage under the pay provisions of the parties'
collective bargaining agreements, the Respondents paid those employees
under an administrative pay scale which was subject to premium pay and
pay increase limitations not previously applicable to employees in
Foreman II and III positions. See Case No. 3-CA-00633, Joint Exhibit
No. 6; Case No. 39-CA-00697, Joint Exhibit No. 7. Therefore, the
causal nexus required by the Back Pay Act, 5 U.S.C. Section 5596, has
been established. See DHHS, SSA, 37 FLRA at 289-90.
Accordingly, we will order Respondent Reclamation to direct
Respondent Mid-Pacific and Respondent Grand Coulee to return to the
status quo ante and to make employees in the Foreman II and Foreman III
positions whole for any withdrawal or reduction in pay, allowances, or
differentials as a result of the Respondents' unlawful actions.
Specifically, Respondents shall pay employees in Foreman II and III
positions who were in those positions during the period of the
repudiation the difference between what they were paid under the
administrative pay scale and what they would otherwise have been paid
under the collective bargaining agreements applicable to those
employees. The amount of the backpay owed each employee will be a
matter for compliance. DHHS, SSA, 37 FLRA at 291-93.
A. Pursuant to section 2423.29 of the Authority's Rules and
Regulations and section 7118 of the Federal Service Labor-Management
Relations Statute, the U.S. Department of the Interior, Bureau of
Reclamation, Washington, D.C. shall:
1. Cease and desist from:
(a) Interfering with the bargaining relationship of the Bureau
of Reclamation, Mid-Pacific Regional Office, Sacramento,
California (Mid-Pacific) and the International Brotherhood of
Electrical Workers (IBEW), Local 1245 at the level of exclusive
recognition by directing Mid-Pacific to: (1) withdraw its
recognition of IBEW Local 1245 as the exclusive bargaining
representative of employees in the Local's mixed unit of
supervisory and nonsupervisory employees classified as Working
Foreman and Foreman (Foreman II and III) and thereby fail to
bargain in good faith with IBEW Local 1245; (2) refuse to comply
with section 7115(a) of the Statute by discontinuing dues
withholding for these foremen; (3) place the foremen on an
administrative pay scale; and (4) not comply with the terms and
conditions of IBEW's collective bargaining agreement with the U.S.
Department of the Interior, Bureau of Reclamation, Washington,
D.C. and Mid-Pacific in repudiation of its agreement with IBEW as
it relates to the Foreman II and III.
(b) Interfering with the bargaining relationship of Mid-Pacific
and IBEW Local 1245 at the level of exclusive recognition by
directing Mid-Pacific to refuse to recognize employees in Foreman
II and III positions as being included in an appropriate mixed
bargaining unit of supervisory and nonsupervisory prevailing rate
employees.
(c) Directing Mid-Pacific to refuse to comply with the
provisions of section 7115(a) of the Statute by refusing to honor
valid written dues assignments form bargaining unit employees in
Foreman II and III positions for the payment of regular and
periodic dues to IBEW Local 1245 as the exclusive bargaining
representative of employees in the Local's mixed unit of
supervisory and nonsupervisory employees.
(d) In any like or related manner interfering with, restraining
or coercing its 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) Inform Mid-Pacific and IBEW Local 1245, in writing, that
Mid-Pacific shall reinstate its recognition of IBEW Local 1245 as
the exclusive bargaining representative of employees in the
Local's mixed unit of supervisory and nonsupervisory employees
classified as Foreman II and III and apply the parties' collective
bargaining agreement, including wage and benefit provisions, to
the employees in those positions. The collective bargaining
agreement shall be applied retroactively to the effective date of
the Mid-Pacific's unlawful change in conditions of employment. If
the parties have enacted a new agreement with respect to the
bargaining unit, Mid-Pacific will apply the terms of the new
agreement as of its effective date.
(b) Direct Mid-Pacific to recognize employees in Foreman II and
III positions as being included in an appropriate mixed bargaining
unit of supervisory and nonsupervisory prevailing rate employees
represented by IBEW Local 1245, their exclusive bargaining
representative.
(c) Direct Mid-Pacific to reinstate, retroactive to the date of
Mid-Pacific's unlawful change in conditions of employment, the
right of employees in Foreman II and III positions to appeal
adverse actions through the administrative appeals procedures as
required by its collective bargaining agreement with IBEW Local
1245. Mid-Pacific shall be directed to waive the time limits for
filing grievances under the parties' agreement to allow employees
in Foreman II and III positions to grieve matters that they would
otherwise have been able to grieve had they been covered by the
agreement.
(d) In accordance with the Back Pay Act, 5 U.S.C. Section 5596,
direct Mid-Pacific to make whole affected employees in the Foreman
II and III positions for any withdrawal or reduction in pay,
allowances, or differentials that resulted from Mid-Pacific's
repudiation of its collective bargaining agreement with IBEW Local
1245 with respect to employees in Foreman II and III positions.
The employees who were in the Foreman II and III positions during
the period of repudiation shall be paid the difference between
what they were paid under the administrative pay scale and what
they would otherwise have been paid under the collective
bargaining agreement between Mid-Pacific and IBEW Local 1245
applicable to the affected employees.
(e) Direct Mid-Pacific to reimburse the exclusive
representative, IBEW Local 1245, an amount equal to the regular
and periodic dues it would have received, but did not, from unit
employees in Foreman II and III positions who had their dues
withholdings unlawfully discontinued as a result of the unlawful
refusal to honor the employees' valid written dues assignment for
such purposes.
(f) Direct Mid-Pacific to deduct, commencing with the first pay
period after the date of this Order, regular and periodic dues
from the pay of: (1) bargaining unit employees in Foreman II and
III positions who had their dues assignments unlawfully
discontinued; and (2) any other unit employee in Foreman II and
III positions who may in the future complete a valid written dues
assignment for such purpose and make an appropriate allotment of
such dues to the exclusive representative, IBEW Local 1245.
(g) Post at its facilities at Mid-Pacific, where bargaining
unit employees represented IBEW Local 1245 are located, copies of
the attached Notice A on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms, they shall
be signed by the Director, Bureau of Reclamation, 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.
(h) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Washington, D.C.
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.
B. Pursuant to Section 2423.29 of the Authority's Rules and
Regulations and section 7118 of the Federal Service Labor Management
Relations Statute, the U.S. Department of the Interior, Bureau of
Reclamation, Washington, D.C. shall:
1. Cease and desist from:
(a) Interfering with the bargaining relationship of the Bureau
of Reclamation, Grand Coulee Project Office, Grand Coulee,
Washington (Grand Coulee) and the Columbia Basin Trades Council,
AFL-CIO (CBTC), at the level of exclusive recognition by directing
Grand Coulee to: (1) withdraw its recognition of CBTC as the
exclusive bargaining representative of employees in CBTC's mixed
unit of supervisory and nonsupervisory employees classified as
Working Foreman and Foreman (Foreman II and III) and thereby fail
to bargain in good faith with CBTC; (2) refuse to comply with
section 7115(a) of the Statute by discontinuing dues withholding
for these foremen; (3) place the foremen on an administrative pay
scale; and (4) not comply with the terms and conditions of CBTC's
collective bargaining agreement with the U.S. Department of the
Interior, Bureau of Reclamation, Washington, D.C. and Grand Coulee
in repudiation of its agreement with CBTC as it relates to Foreman
II and III.
(b) Interfering with the bargaining relationship of Grand
Coulee and CBTC at the level of exclusive recognition by directing
Grand Coulee to refuse to recognize employees in Foreman II and
III positions as being included in an appropriate mixed bargaining
unit of supervisory and nonsupervisory prevailing rate employees.
(c) Directing Grand Coulee to refuse to comply with the
provisions of section 7115(a) of the Statute by refusing to honor
valid written dues assignments from bargaining unit employees in
Foreman II and III positions for the payment of regular and
periodic dues to CBTC as the exclusive bargaining representative
of employees in the CBTC's mixed unit of supervisory and
nonsupervisory employees.
(d) In any like or related manner interfering with, restraining
or coercing its 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) Inform Grand Coulee and CBTC, in writing, that Grand Coulee
shall reinstate its recognition of CBTC as the exclusive
bargaining representative of employees in CBTC's mixed unit of
supervisory and nonsupervisory employees classified as Foreman II
and III and apply the parties' collective bargaining agreement,
including wage and benefit provisions, to the employees in those
positions. The collective bargaining agreement shall be applied
retroactively to the effective date of the Grand Coulee's unlawful
change in conditions of employment. If the parties have enacted a
new agreement with respect to the bargaining unit, Grand Coulee
will apply the terms of the new agreement as of its effective
date.
(b) Direct Grand Coulee to recognize employees in Foreman II
and III positions as being included in an appropriate mixed
bargaining unit of supervisory and nonsupervisory prevailing rate
employees represented by CBTC, their exclusive bargaining
representative.
(c) Direct Grand Coulee to reinstate, retroactive to the date
of Grand Coulee's unlawful change in conditions of employment, the
right of employees in Foreman II and III positions to appeal
adverse actions through the administrative appeals procedures as
required by its collective bargaining agreement with CBTC. Grand
Coulee shall be directed to waive the time limits for filing
grievances under the parties' agreement to allow employees in
Foreman II and III positions to grieve matters that they would
otherwise have been able to grieve had they been covered by the
agreement.
(d) In accordance with the Back Pay Act, 5 U.S.C. Section 5596,
direct Grand Coulee to make whole affected employees in the
Foreman II and III positions for any withdrawal or reduction in
pay, allowances, or differentials as a result of Grand Coulee's
total repudiation of its collective bargaining agreement with
CBTC. The employees who were in the Foreman II and III positions
during the period of repudiation shall be paid the difference
between what they were paid under the administrative pay scale and
what they would otherwise have been paid under the collective
bargaining agreement between Grand Coulee and CBTC applicable to
the affected employees.
(e) Direct Grand Coulee to reimburse the exclusive
representative, CBTC, in an amount equal to the regular and
periodic dues it would have received, but did not, from unit
employees in Foreman II and III positions who had their dues
withholdings unlawfully discontinued as a result of the unlawful
refusal to honor the employees' valid written dues assignment for
such purposes.
(f) Direct Grand Coulee to deduct, commencing with the first
pay period after the date of this Order, regular and periodic dues
from the pay of: (1) bargaining unit employees in Foreman II and
III positions who had their dues assignments unlawfully
discontinued; and (2) any other unit employee in Foreman II and
III positions who may in the future complete a valid written dues
assignment for such purpose and make an appropriate allotment of
such dues to the exclusive representative, CBTC.
(g) Post at its facilities at Grand Coulee, where bargaining
unit employees represented CBTC are located, copies of the
attached Notice B on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be
signed by the Director, Bureau of Reclamation, 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.
(h) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Washington, D.C.
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.
C. It is further ordered that the complaints in this consolidated
case against the Bureau of Reclamation, Mid-Pacific Regional Office,
Sacramento, California and the Bureau of Reclamation, Grand Coulee
Project Office, Grand Coulee, Washington be dismissed.
(1) Member Talkin's dissenting opinion is set forth after the
majority opinion.
(2) The provisions of section 9(b) of the PRSA and section 704 of the
CSRA are found in the Appendix to this decision.
(3) A dispute subsequently arose between WAPA and IBEW over the unit
status of employees in Foreman II and III positions who were transferred
in 1977 from the Department of the Interior to the Department of Energy.
The history of that dispute is set forth in the Authority's decisions
in WAPA 1; Department of Energy, Western Area Power Administration,
Golden, Colorado, Case No. 7-CU-24 (Feb. 17, 1981) (WAPA 2); U.S.
Department of Energy, Western Area Power Administration, Golden,
Colorado, 22 FLRA 758 (1986) (WAPA 3), rev'd, 880 F.2d 1163 (10th Cir.
1989); U.S. Department of Energy, Western Area Power Administration,
Golden, Colorado, 27 FLRA 268 (1987) (WAPA 4), rev'd, No. 87-2062 (10th
Cir. Nov. 15, 1989) (order); U.S. Department of Energy, Washington,
D.C. and Western Area Power Administration, Golden, Colorado, 34 FLRA
361 (1990) (WAPA 5); U.S. Department of Energy, Washington, D.C. and
Western Area Power Administration, Golden, Colorado, 34 FLRA 368 (1990)
(WAPA 6); and U.S. Department of Energy, Western Area Power
Administration, Golden, Colorado, 38 FLRA 935 (1990) (WAPA 7). During
the course of the dispute, transferred employees in Foreman II and III
positions were reclassified by WAPA as Supervisory Craftsmen. See WAPA
2 and WAPA 3. Noting that the parties and the issue before it were the
same parties and issue that were before the court in WAPA v. FLRA, the
Authority concluded in WAPA 5 and WAPA 6 that the transferred employees
in Foreman II and III positions reclassified by WAPA as Supervisory
Craftsmen were not included in the unit of prevailing rate employees
represented by the union in those cases.
(4) The positions of IBEW and Local 1245 are set forth in the same
brief and, for convenience, will be referred to as IBEW's position.
(5) Section 7135(a) is set forth in the Appendix to this decision.
(6) Section 704(b) provides that terms and conditions of employment
described as "pay and pay practices" may be negotiated only in
accordance with current prevailing rates and practices in the industry.
WE WILL NOT interfere with the bargaining relationship of the Bureau
of Reclamation, Mid-Pacific Regional Office, Sacramento, California
(Mid-Pacific) and the International Brotherhood of Electrical Workers
(IBEW), Local 1245 at the level of exclusive recognition by directing
Mid-Pacific to: (1) withdraw its recognition of IBEW Local 1245 as the
exclusive bargaining representative of employees in the Local's mixed
unit of supervisory and nonsupervisory employees classified as Working
Foreman and Foreman (Foreman II and III) and thereby fail to bargain in
good faith with IBEW Local 1245; (2) refuse to comply with section
7115(a) of the Statute by discontinuing dues withholding for these
foremen; (3) place the foremen on an administrative pay scale; and (4)
not comply with the terms and conditions of IBEW's collective bargaining
agreement with the U.S. Department of the Interior, Bureau of
Reclamation, Washington, D.C. and Mid-Pacific in repudiation of its
agreement with IBEW as it relates to the Foreman II and III.
WE WILL NOT interfere with the bargaining relationship of Mid-Pacific
and IBEW Local 1245 at the level of exclusive recognition by directing
Mid-Pacific to refuse to recognize employees in Foreman II and III
positions as being included in an appropriate mixed bargaining unit of
supervisory and nonsupervisory prevailing rate employees.
WE WILL NOT direct Mid-Pacific to refuse to comply with the
provisions of section 7115(a) of the Statute by refusing to honor valid
written dues assignments from bargaining unit employees in Foreman II
and III positions for the payment of regular and periodic dues to IBEW
Local 1245 as the exclusive bargaining representative of employees in
the Local's mixed unit of supervisory and nonsupervisory employees.
WE WILL NOT, in any like or related manner, interfere with, restrain
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL inform Mid-Pacific and IBEW Local 1245, in writing, that
Mid-Pacific shall reinstate its recognition of IBEW Local 1245 as the
exclusive bargaining representative of employees in the Local's mixed
unit of supervisory and nonsupervisory employees classified as Foreman
II and III and apply the parties' collective bargaining agreement,
including wage and benefit provisions, to the employees in those
positions. The collective bargaining agreement shall be applied
retroactively to the effective date of Mid-Pacific's unlawful change in
conditions of employment. If the parties have enacted a new agreement
with respect to the bargaining unit, Mid-Pacific will apply the terms of
the new agreement as of its effective date.
WE WILL direct Mid-Pacific to recognize employees in Foreman II and
III positions as being included in an appropriate mixed bargaining unit
of supervisory and nonsupervisory prevailing rate employees represented
by IBEW Local 1245, their exclusive bargaining representative.
WE WILL direct Mid-Pacific to reinstate, retroactive to the date of
Mid-Pacific's unlawful change in conditions of employment, the right of
employees in Foreman II and III positions to appeal adverse actions
through the administrative appeals procedures as required by its
collective bargaining agreement with IBEW Local 1245. We will direct
Mid-Pacific to waive the time limits for filing grievances under the
parties' agreement to allow employees in Foreman II and III positions to
grieve matters that they would otherwise have been able to grieve had
they been covered by the agreement.
WE WILL, in accordance with the Back Pay Act, 5 U.S.C. Section 5596,
direct Mid-Pacific to make whole affected employees in the Foreman II
and III positions for any withdrawal or reduction in pay, allowances, or
differentials that resulted from Mid-Pacific's repudiation of its
collective bargaining agreement with IBEW Local 1245 with respect to
employees in Foreman II and III positions. The employees who were in
the Foreman II and III positions during the period of repudiation shall
be paid the difference between what they were paid under the
administrative pay scale and what they would otherwise have been paid
under the collective bargaining agreement between Mid-Pacific and IBEW
Local 1245.
WE WILL direct Mid-Pacific to reimburse the exclusive representative,
IBEW Local 1245, an amount equal to the regular and periodic dues it
would have received, but did not, from unit employees in Foreman II and
III positions who had their dues withholdings unlawfully discontinued as
a result of the unlawful refusal to honor the employees' valid written
dues assignment for such purposes.
WE WILL direct Mid-Pacific to deduct, commencing with the first pay
period after the date of this Order, regular and periodic dues from the
pay of: (1) bargaining unit employees in Foreman II and III positions
who had their dues assignments unlawfully discontinued; and (2) any
other unit employee in Foreman II and III positions who may in the
future complete a valid written dues assignment for such purpose and
make an appropriate allotment of such dues to the exclusive
representative, IBEW Local 1245.
(Agency)
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, D.C. Regional Office, San Francisco Regional
Office, Federal Labor Relations Authority, whose address is: 1111 18th
Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and
whose telephone number is: (202) 653-8500.
WE WILL NOT interfere with the bargaining relationship of the Bureau
of Reclamation, Grand Coulee Project Office, Grand Coulee, Washington
(Grand Coulee) and the Columbia Basin Trades Council, AFL-CIO, (CBTC),
at the level of exclusive recognition by directing Grand Coulee to: (1)
withdraw its recognition of CBTC as the exclusive bargaining
representative of employees in CBTC's mixed unit of supervisory and
nonsupervisory employees classified as Working Foreman and Foreman
(Foreman II and III) and thereby fail to bargain in good faith with
CBTC; (2) refuse to comply with section 7115(a) of the Statute by
discontinuing dues withholding for these foremen; (3) place the foremen
on an administrative pay scale; and (4) not comply with the terms and
conditions of CBTC's collective bargaining agreement with the U.S.
Department of the Interior, Bureau of Reclamation, Washington, D.C. and
Grand Coulee in repudiation of its agreement with CBTC as it relates to
the Foreman II and III.
WE WILL NOT interfere with the bargaining relationship of Grand
Coulee and CBTC at the level of exclusive recognition by directing Grand
Coulee to refuse to recognize employees in Foreman II and III positions
as being included in an appropriate mixed bargaining unit of supervisory
and nonsupervisory prevailing rate employees.
WE WILL NOT direct Grand Coulee to refuse to comply with the
provisions of section 7115(a) of the Statute by refusing to honor valid
written dues assignments from bargaining unit employees in Foreman II
and III positions for the payment of regular and periodic dues to CBTC
as the exclusive bargaining representative of employees in the CBTC's
mixed unit of supervisory and nonsupervisory employees.
WE WILL NOT, in any like or related manner, interfere with, restrain
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL inform Grand Coulee and CBTC, in writing, that Grand Coulee
shall reinstate its recognition of CBTC as the exclusive bargaining
representative of employees in CBTC's mixed unit of supervisory and
nonsupervisory employees classified as Foreman II and III and apply the
parties' collective bargaining agreement, including wage and benefit
provisions, to the employees in those positions. The collective
bargaining agreement shall be applied retroactively to the effective
date of Grand Coulee's unlawful change in conditions of employment. If
the parties have enacted a new agreement with respect to the bargaining
unit, Grand Coulee will apply the terms of the new agreement as of its
effective date.
WE WILL direct Grand Coulee to recognize employees in Foreman II and
III positions as being included in an appropriate mixed bargaining unit
of supervisory and nonsupervisory prevailing rate employees represented
by CBTC, their exclusive bargaining representative.
WE WILL direct Grand Coulee to reinstate, retroactive to the date of
Grand Coulee's unlawful change in conditions of employment, the right of
employees in Foreman II and III positions to appeal adverse actions
through the administrative appeals procedures as required by its
collective bargaining agreement with CBTC. We will direct Grand Coulee
to waive the time limits for filing grievances under the parties'
agreement to allow employees in Foreman II and III positions to grieve
matters that they would otherwise have been able to grieve had they been
covered by the agreement.
WE WILL, in accordance with the Back Pay Act, 5 U.S.C. Section 5596,
direct Grand Coulee to make whole affected employees in the Foreman II
and III positions for any withdrawal or reduction in pay, allowances, or
differentials as a result of Grand Coulee's total repudiation of its
collective bargaining agreement with CBTC. The employees who were in
the Foreman II and III positions during the period of repudiation shall
be paid the difference between what they were paid under the
administrative pay scale and what they would otherwise have been paid
under the collective bargaining agreement between Grand Coulee and CBTC
applicable to the affected employees.
WE WILL direct Grand Coulee to reimburse the exclusive
representative, CBTC, in an amount equal to the regular and periodic
dues it would have received, but did not, from unit employees in Foreman
II and III positions who had their dues withholdings unlawfully
discontinued as a result of the unlawful refusal to honor the employees'
valid written dues assignment for such purposes.
WE WILL direct Grand Coulee to deduct, commencing with the first pay
period after the date of this Order, regular and periodic dues from the
pay of: (1) bargaining unit employees in Foreman II and III positions
who had their dues assignments unlawfully discontinued; and (2) any
other unit employee in Foreman II and III positions who may in the
future complete a valid written dues assignment for such purpose and
make an appropriate allotment of such dues to the exclusive
representative, CBTC.
(Agency)
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, D.C. Regional Office, San Francisco Regional
Office, Federal Labor Relations Authority, whose address is: 1111 18th
Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and
whose telephone number is: (202) 653-8500.
I am persuaded that the United States Court of Appeals for the Tenth
Circuit in United States Department of Energy, Western Area Power
Administration, Golden, Colorado v. FLRA, 880 F.2d 1163 (10th Cir. 1989)
(WAPA v. FLRA) correctly interpreted section 7112 of the Statute as it
relates to section 9(b) of the Prevailing Rate Systems Act and section
704 of the Civil Service Reform Act. Accordingly, I respectfully
dissent.
In WAPA v. FLRA, the court refused to defer to the Authority's
interpretation of section 704, the same interpretation to which the
majority continues to adhere. The court found that, like here, the
employees at issue were "entitled to the application of (s)ection 704."
WAPA v. FLRA at 1169. However, the court stated that the Authority had
not "explained how a previously voluntary bargaining relationship (had)
been converted into a vested right for (those) supervisory employees to
be included in a particular bargaining unit when one party . . . does
not agree." Id. at 1170. I do not believe that the majority has given
an adequate explanation for such a finding here.
Contrary to the Authority's position, the court concluded that
section 704 does not "trump . . . the prohibition on supervisors in
(s)ection 7112" and that the section 7112 prohibition on finding a mixed
bargaining unit appropriate is consistent with section 704. Id. at
1169. In this regard the court specifically rejected the Authority's
argument, repeated by the majority here, that the scope of the
bargaining unit is included within the phrase "terms and conditions of
employment" found in section 704. I agree with the court's conclusions.
For the same reasons, neither do I believe, contrary to my colleagues,
that the inclusion of supervisors in a bargaining unit can be viewed as
"(an)other employment benefit . . ." under section 704.
It is my view that the court was correct when it concluded that
section 9(b) of the Prevailing Rate Systems Act "merely protects certain
collective bargaining contracts and the rights of parties to renegotiate
them from the effect of the Prevailing Rate Systems Act; it does not
provide an exception to the prohibition of supervisors in bargaining
units contained in the Civil Service Reform Act." Id. I would find that
where, as here, the scope of the bargaining unit was a subject of
bargaining between the parties prior to 1972, "the policy behind
(s)ection 704, which purports to preserve historical subjects of
negotiation, would appear to be applicable to negotiations regarding the
appropriate bargaining unit." Id. at 1170.
Therefore, in agreement with the court, I would conclude that
"(s)ection 704, in conjunction with (s)ection 9(b), does not establish
any vested right in the supervisors to be part of a bargaining unit.
Rather, it merely preserves the negotiability of historical subjects of
negotiation." Id. (emphasis in original). At most, section 9(b) "allows
employees to continue to negotiate as part of a mixed unit" if the
parties agree. Id. at 1172. Therefore, even if the continued inclusion
of supervisors in the bargaining unit is a subject of negotiation
permitted by section 704 and, therefore, upon agreement of the parties,
a mixed unit would be allowed as an exception to the prohibition found
in section 7112 of the Statute, the employing agencies in this case are
"under no obligation to agree to a mixed unit. At most, (s)ection 704
authorizes mixed units if (they) consent. . . ." Id. at 1170.
Because there has been no agreement between the parties to continue
negotiating over the terms and conditions of the employees at issue as
part of mixed bargaining units, the unlawful refusal to bargain, as
alleged, cannot be found. While there may be a viable theory here of a
violation of the Statute, none was alleged or argued. Accordingly, I
would dismiss the complaints.
Section 9(b) of the Prevailing Rate Systems Act of 1972, Pub. L. No.
92-392, codified at 5 U.S.C. Section 5343 (Amendments, note), provides
that:
The amendments made by this Act shall not be construed to --
(1) abrogate, modify, or otherwise affect in any way the
provisions of any contract in effect on the date of enactment of
this Act (Aug. 19, 1972) pertaining to the wages, the terms and
conditions of employment, and other employment benefits, or any of
the foregoing matters, for Government prevailing rate employees
and resulting from negotiations between Government agencies and
organizations of Government employees;
(2) nullify, curtail, or otherwise impair in any way the right
of any party to such contract to enter into negotiations after the
date of enactment of this Act (Aug. 19, 1972) for the renewal,
extension, modification, or improvement of the provisions of such
contract or for the replacement of such contract with a new
contract; or
(3) nullify, change, or otherwise affect in any way after such
date of enactment (Aug. 19, 1972) any agreement, arrangement, or
understanding in effect on such date (Aug. 19, 1972) with respect
to the various items of subject matter of the negotiations on
which any such contract in effect on such date (Aug. 19, 1972) is
based or prevent the inclusion of such items of subject matter in
connection with the renegotiation of any such contract, or the
replacement of such contract with a new contract, after such date
(Aug. 19, 1972).
Section 704 of the Civil Service Reform Act of 1978, Pub. L. No.
95-454, 92 Stat. 1111, 1218, codified at 5 U.S.C. Section 5343
(Amendments), provides that:
(a) Those terms and conditions of employment and other
employment benefits with respect to Government prevailing rate
employees to whom section 9(b) of Public Law 92-392 applies which
were the subject of negotiation in accordance with prevailing
rates and practices prior to August 19, 1972, shall be negotiated
on and after the date of the enactment of this Act (Oct. 13, 1978)
in accordance with the provisions of section 9(b) of Public Law
92-392 without regard to any provision of chapter 71 of title 5,
United States Code (as amended by this title), to the extent that
any such provision is inconsistent with this paragraph.
(b) The pay and pay practices relating to employees referred to
in paragraph (1) of this subsection shall be negotiated in
accordance with prevailing rates and pay practices without regard
to any provision of --
(A) chapter 71 of title 5, United States Code (as amended by
this title), to the extent that any such provision is inconsistent
with this paragraph;
(B) subchapter IV of chapter 53 and subchapter V of chapter 55
of title 5, United States Code; or
(C) any rule, regulation, decision, or order relating to rates
of pay or pay practices under subchapter IV of chapter 53 or
subchapter V of chapter 55 of title 5, United States Code.
Section 7135(a) of the Statute provides the following:
Section 7135. Continuation of existing laws, recognitions,
agreements, and procedures
(a) Nothing contained in this chapter shall preclude --
(1) the renewal or continuation of an exclusive recognition,
certification of an exclusive representative, or a lawful
agreement between an agency and an exclusive representative of its
employees which is entered into before the effective date of this
chapter; or
(2) the renewal, continuation, or initial according of
recognition for units of management officials or supervisors
represented by labor organizations which historically or
traditionally represent management officials or supervisors in
private industry and which hold exclusive recognition for units of
such officials or supervisors in any agency on the effective date
of this chapter.
46 FLRA 3
46 FLRA NO. 1
U.S. Dept. of Labor and AFGE, National Council of Field Labor Locals
(Smedley, Arbitrator), Case No. 0-AR-2262 (Decided October 5, 1992)
7122(a)
7106(a)(2)(A) and (B)
5 C.F.R. Section 430.204(c)(3)
ARBITRATION EXCEPTION
MGT'S RIGHT TO ESTABLISH PERFORMANCE STANDARDS
PERFORMANCE ELEMENTS AND STANDARDS
ARBITRAL REVIEW OF PERFORMANCE STANDARDS
The Arbitrator ordered the Agency to strike a rating on a certain
performance element of the grievant's annual performance evaluation
because the Agency had not encouraged employee participation in
establishing the performance standards for that element. The Authority
concluded that the Agency's exception provided no basis for finding the
award deficient.
The Authority rejected the Agency's exception that the Arbitrator
erred in finding that the Agency did not establish the disputed element
in accordance with 5 U.S.C. Section 4302(a)(2) and 5 C.F.R. Section
430.204(c)(3). The Authority concluded that in view of this arbitral
finding, the award striking the disputed element was not inconsistent
with management's rights under section 7106(a)(2)(A) and (B) of the
Statute.
The Authority also rejected the Agency's claim that the Arbitrator
improperly raised the grievant's performance rating. The Authority
noted that the Arbitrator made no determination as to the grievant's
proper performance rating.
Case No. 0-AR-2262
U.S. DEPARTMENT OF LABOR
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES NATIONAL COUNCIL OF FIELD
LABOR LOCALS
(Union)
October 5, 1992
Before Chairman McKee and Members Talkin and Armendariz
This matter is before the Authority on an exception to an award of
Arbitrator Robert W. Smedley filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. The Union filed
an opposition to the Agency's exception.
The Arbitrator ordered the Agency to strike a rating on a certain
performance element of the grievant's annual performance evaluation
because the Agency had not encouraged employee participation in
establishing the performance standards for that element. For the
following reasons, we conclude that the Agency's exception provides no
basis for finding the award deficient. Accordingly, we will deny the
exception.
The Union filed a grievance contesting an employee's rating of "needs
improvement" on a non-critical element of her performance evaluation.
The Union challenged the rating on, among other grounds, the basis that
"(n)o union or employee input went into formulation of the standards."
Award at 10. The Union sought to have the grievant's rating on the
disputed element stricken, or, in the alternative, changed from "needs
improvement" to "meets(.)" Id. at 4-5.
When the grievance was not resolved, it was submitted to arbitration.
In the absence of a stipulation by the parties, the Arbitrator framed
the issue as follows:
Did management violate the collective bargaining agreement in its
formulation of performance standards and its evaluation of the
performance of grievant on element 6 . . . ? If so, what is the
appropriate remedy?
Id. at 2.
As relevant here, the Arbitrator found that the disputed performance
elements and standards "were prepared by (three supervisors) at a
weekend retreat." Id. at 16-17. The Arbitrator also found that although
the grievant was "shown the proposed standards" and submitted comments
on them, "management made no substantive changes(,)" on the standards
but returned the grievant's submissions "with some snide comments." Id.
at 17.
According to the Arbitrator, the evidence failed to show that
"management encouraged employee participation()" as "there was a
perfunctory comment opportunity, and no give and take." Id. The
Arbitrator concluded that, by failing to encourage employee
participation in the establishment of the standards, the Agency violated
5 U.S.C. Section 4302(a), /1/ 5 C.F.R. Section 430.204(c), /2/ and the
parties' collective bargaining agreement. /3/ As his award, the
Arbitrator sustained the grievance and ordered the Agency to strike the
disputed element from the grievant's performance rating. /4/
The Agency disputes the Arbitrator's conclusion that it did not
comply with 5 U.S.C. Section 4302(a)(2) when it established performance
standards for the disputed element. The Agency claims that "(b)y
providing the grievant the opportunity to comment on the standards(,)"
it satisfied its responsibilities under 5 U.S.C. Section 4302.
Exception at 5-6. The Agency notes, moreover, that the grievant's
supervisor "took the time to make substantive comments on most of the
recommendations of the grievant." Id. at 6. Further, according to the
Agency, the Arbitrator's characterization of those comments as "snide"
is "not a legitimate basis for striking down a standard (nor is) such a
remedy . . . within the scope or intent of Section 4302(a)(2)." Id. The
Agency argues that, as the Arbitrator "improperly utilized (5 U.S.C.)
Section 4302(a)(2) as a basis to override the Section 7106(a)(2)(A) and
(B) management right to create performance elements and standards(,)"
the award violates the Agency's right under section 7106(a)(2)(A) and
(B) of the Statute to identify and implement performance elements and
standards. Id. at 7.
Finally, the Agency objects to granting an outstanding rating to the
grievant. According to the Agency, an arbitrator may order a grievant's
performance rating raised only if the arbitrator properly determines
what the grievant's rating would have been if the violation had not
occurred. The Agency maintains that, as the Arbitrator "rejected
arguments that the grievant's appraisal . . . was unfair or
inaccurate(,)" the Arbitrator improperly raised the grievant's
performance rating. Id. at 10.
The Union claims that the Arbitrator's award did not interfere with
management's rights and is "in keeping with (Article 43, Section 20), .
. . (which) allows the arbitrator to set aside a rating." Opposition at
3-4. /5/ The Union also contends that although an outstanding rating
"is in fact the ultimate outcome in this case," the rating was arrived
at by "a purely mechanical process under the bargaining agreement" which
requires an outstanding rating "if an employee exceeds all critical
elements and 50% of the non-critical elements(.)" Id. at 3.
Under section 7106(a)(2)(A) and (B) of the Statute, the Agency has
the right to identify critical elements and to establish the contents of
performance standards in accordance with applicable law. National
Treasury Employees Union and Department of the Treasury, Bureau of the
Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v. FLRA, 691 F.2d
553 (D.C. Cir. 1982). An arbitrator may examine the performance
standards and elements established by management for a grievant in order
to determine whether they comply with applicable legal and regulatory
requirements, including 5 U.S.C. Section 4302 and 5 C.F.R. Chapter 430.
Newark Air Force Station and American Federation of Government
Employees, Local 2221, 30 FLRA 616, 636 (1987).
In this respect, 5 U.S.C. Section 4302(a) obligates agencies to
encourage employee participation in the development of their performance
standards. Further, 5 C.F.R. Section 430.204(c), which implements 5
U.S.C. Section 4302(a), provides that agencies may encourage employee
participation in the establishment of performance plans in a number of
ways. Among the ways suggested, the regulation provides that agencies
can encourage employee participation by submitting draft performance
plans to employees and providing them an opportunity to comment on the
plans. 5 C.F.R. Section 430.204(c)(3). In this case, it is undisputed
that the proposed standards were prepared by the supervisors, that they
were given to the affected employees, that comments by the employees
were submitted to supervisors, and that the comments were evaluated by
the Agency. This process clearly is encompassed by the applicable
regulation.
However, the Arbitrator also found that the comment period provided
by the Agency was "perfunctory." Award at 17. In this regard, the
Arbitrator found that the process used by the Agency did not encompass
"give and take" between the grievant and his supervisor. Id. The
Arbitrator also found that the grievant's supervisor made "snide"
comments regarding the grievant's suggested changes. Id. The Agency
does not dispute these findings. /6/
In effect, the Arbitrator concluded that the comment period provided
by the Agency was inadequate to satisfy the Agency's statutory and
regulatory obligations. In view of the Arbitrator's findings, we agree.
In particular, we find no basis on which to conclude that applicable
law and regulation permit the Agency to satisfy its obligation to
encourage employee participation in the establishment of performance
standards through the use of a comment period such as that involved in
this case. /7/ Accordingly, we reject the Agency's exception that the
Arbitrator erred in finding that the Agency did not establish the
disputed element in accordance with 5 U.S.C. Section 4302(a)(2) and 5
C.F.R. Section 430.204(c)(3). In view of this arbitral finding, the
award striking the disputed element is not inconsistent with
management's rights under section 7106(a)(2)(A) and (B) of the Statute.
We also reject the Agency's claim that the Arbitrator improperly
raised the grievant's performance rating. In this case, the Arbitrator
made no determination as to the grievant's proper performance rating.
Rather, as noted by the Union, any change in the grievant's rating will
result from application of the parties' collective bargaining agreement.
In sum, the Agency's exception provides no basis for finding the
award deficient. Accordingly, we will deny the Agency's exception.
The Agency's exception is denied.
(1) 5 U.S.C. Section 4302(a) provides, in relevant part:
(a) Each agency shall develop one or more performance appraisal
systems which ---
(2) encourage employee participation in establishing
performance standards(.)
(2) 5 C.F.R. Section 430.204(c) provides, in relevant part:
(c) Each appraisal system shall encourage employee
participation in establishing performance plans. This may be
accomplished by means including, but not limited to, the
following:
(1) Employee and supervisor discuss and develop performance
plan together;
(2) Employee provides to supervisor a draft performance plan;
(3) Employee comments on draft performance plan prepared by
supervisor; and
(4) Performance plan is prepared by a group of employees
occupying similar positions, with supervisor's approval.
Final authority for establishing such plans rests with the
supervising officials.
(3) Although the Arbitrator did not specify the portion of the
collective bargaining agreement to which he referred, the Arbitrator
noted that according to Article 43, Section 2(B) of the parties'
agreement, the "performance appraisal system is to 'Provide for employee
participation in establishing performance standards and elements.'"
Award at 15. In addition, the Arbitrator noted that Article 43 "is the
parties' 'implementation'" of 5 U.S.C. Section 4302 and 5 C.F.R. Section
430.204(c). Id.
(4) Although not addressed by the Arbitrator, it is undisputed that
the grievant's summary performance rating would be raised from fully
successful to outstanding as a result of the award.
(5) Article 43, Section 20, provides, in relevant part:
The arbitrator . . . is empowered to set aside a rating on the
basis of lack of fairness, reasonableness, objectivity and job
relatedness for the job elements or performance standards.
Award at 6.
(6) The Agency does not address the Arbitrator's finding that the
comment period was perfunctory. The Agency asserts that the "so-called
'snide' comments . . . occurred after the grievant had already given her
input into the development of the standards()" and provide "no rational
basis for striking down a standard . . . ." Exceptions at 6 (emphasis in
original).
(7) This view is consistent with the legislative history of 5 U.S.C.
Section 4302(a) which states that the section "specifically encourages
employee participation in establishing performance objectives.
Experience has shown that doing so motivates employees to accomplish the
objectives." S. Rep. No. 95-969, 95th Cong., 2d Sess. 41 (1978),
reprinted in House Comm. on Post Office and Civil Service, 96th Cong.,
1st Sess., Legislative History of the Civil Service Reform Act of 1978,
at 1505 (Comm. Print No. 96-2, 1979). In addition, Federal Personnel
Manual chapter 430, subchapter 2-3d, states that "employee participation
is encouraged by statute because it is good management practice.
Employees usually have a great deal of knowledge about the requirements
of their jobs and also tend to be more committed to achieving expected
levels of performance when they have had an opportunity to participate
in establishing those levels."
45 FLRA 1411
45 FLRA NO 137
U.S. Dept. of Defense, Office of Dependents Schools and Overseas
Education Association (Morton Rosen, Arbitrator), Case No. 0-AR-2257
(Decided September 30, 1992)
7122(a)
7512
7121(f)
7121(c)(4)
7106(b)(1)
ARBITRATION EXCEPTIONS
TEMPORARY EMPLOYEES
REMOVALS
AUTHORITY'S JURISDICTION
GRIEVANCES CONCERNING APPOINTMENTS
MGT'S RIGHT TO DETERMINE THE TYPES AND GRADES OF EMPLOYEES
NONFACT
The Arbitrator determined that the Agency violated Department of
Defense (DoD) Directive 1400.13 by failing to convert a group of
teachers in temporary positions to permanent positions. The Authority
concluded that the Agency failed to establish that the award was
deficient.
In its opposition, the Union argued that the Agency's exceptions
should be dismissed for lack of jurisdiction insofar as the award
related to the grievants who were terminated at the expiration of their
temporary appointments. The Union claimed that those employees were
removed, and that under section 7122(a), the Authority did not have
jurisdiction over awards related to removals.
The Authority found that because the grievants who were terminated
were temporary employees, their terminations were not matters similar to
those covered under section 7512. Accordingly, the Authority concluded
that the portion of the award pertaining to these grievants did not
relate to a matter described in section 7121(f) and that the Agency's
exceptions to the award were properly before the Authority.
As to the first exception, the Authority concluded that the Agency
failed to establish that the award was deficient. The Authority
concluded that because the grievance in this case did not concern the
initial appointments of the grievants, no basis was provided for finding
that the grievance in this case was precluded by section 7121( c)(4) of
the Statute.
As to the second exception, the Authority concluded that the Agency
failed to establish that the award was deficient on the ground that it
was contrary to the Statute. The Authority concluded that no basis was
provided for finding the award contrary to section 7106(b)(1) of the
Statute. The Authority found that DoD Directive 1400.13 governed the
conversion of teachers from temporary appointments to permanent
appointments and that, consequently, the regulation was enforceable by
the Arbitrator consistent with section 7106(b)(1) of the Statute.
As to the third exception, the Authority concluded that the Agency
failed to establish that the award was based on a nonfact and,
therefore, deficient.
Case No. 0-AR-2257
U.S. DEPARTMENT OF DEFENSE, OFFICE OF DEPENDENTS SCHOOLS
(Agency)
OVERSEAS EDUCATION ASSOCIATION
(Union)
September 30, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator H. Morton Rosen filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Union filed an
opposition to the Agency's exceptions.
The Arbitrator determined that the Agency had violated Department of
Defense (DoD) Directive 1400.13 by failing to convert a group of
teachers in temporary positions to permanent positions. We conclude
that the Agency fails to establish that the award is deficient.
Accordingly, we will deny the exceptions.
The Union filed a grievance alleging that the Agency had violated DoD
Directive 1400.13, as it pertains to conversions of Agency teachers with
temporary appointments to permanent appointments. The Union claimed
that a group of teachers in temporary positions was entitled to have
been converted to permanent positions because each teacher had met the
conditions of the directive for conversion as of the beginning of the
1990-91 school year. The Union argued that under the directive,
conversion was mandatory and that the Agency had violated the directive
by failing to convert the teachers. The Agency denied the grievance on
the basis that the grievance was not grievable and arbitrable. The
Agency claimed that the grievance concerned conversion from temporary to
permanent appointments and that, therefore, the grievance was precluded
because it concerned appointments. The Agency also denied the grievance
on the basis that under the circumstances, the grievants were not
entitled to have been converted. The grievance was not resolved and was
submitted to arbitration on the issues of whether the grievance was
grievable and arbitrable and whether the Agency had violated the
directive.
The Arbitrator determined that the grievance was grievable and
arbitrable. The Arbitrator agreed with the Union that the grievance
concerned conversion and not appointment.
On the merits, the Arbitrator noted that the applicable provisions of
DoD Directive 1400.13, section IV.D.1 provide as follows:
b. . . . Upon satisfactory completion of a cumulative period
of 8 calendar months during one or more school years in a part or
full-time position with the DoD Overseas Dependents' Schools
System, the educator may be selected for conversion to an Excepted
Appointment-Conditional at the end of the current school year.
c. A fully qualified educator appointed in the United States
or who has previously served at least 8 calendar months in a part
or full-time position with the DoD Overseas Dependents' Schools
System will, upon appointment to a continuing part or full-time
position, be given an Excepted Appointment-Conditional, unless
eligible for an Excepted Appointment without condition.
f. Whenever reasonable doubt exists that an educator's
services will be needed or available for a full school year an
educator appointed to a part or full-time position may be given a
temporary limited appointment for the period of actual need.
Award at 8 (quoting the directive).
The Arbitrator determined that when a teacher meets the conditions of
subsection c, the Agency must convert the teacher. The Arbitrator noted
that the Agency conceded that the grievants met the conditions of having
served at least 8 months in a part-time or full-time position with the
Agency. The Agency's argument was that the grievants were not entitled
to have been converted because they had not been appointed to continuing
part-time or full-time positions.
The Arbitrator rejected the Agency's argument. The Arbitrator found
that the objective evidence demonstrated that the grievants were
appointed to continuing positions. In the Arbitrator's view, the most
important evidence was the Agency's use of the standard form (SF) 50 in
appointing the grievants for the 1990-91 school year. The Arbitrator
found that the use of the end of the school year as the not to exceed
(NTE) date of the grievants' appointments indicated that the position
appointments were to last the entire school year. The Arbitrator also
noted that the fact that the positions did last the entire school year
supported the Union's claim that the positions were needed for the
entire year.
The Arbitrator was not persuaded otherwise by the testimony of the
Agency's personnel director that "the placing of the NTE date at the end
of the school year, instead of at a mid-point of the school year, was
done because of laziness and was not intended to convey a notion that
the job was meant to be permanent" and that "this lazy use of the SF 50
form was not done at his direction." Id. at 9. The Arbitrator also
rejected the Agency's reliance on subsection f of the directive. He
found that in order for subsection f to be consistent with subsection c,
subsection f applies only when the teacher has not already been
appointed to a continuing part-time or full-time position. In addition,
the Arbitrator was not persuaded by the Agency's contention that it had
a reasonable doubt as to whether the grievants' services would be needed
for the full school year. The Arbitrator found that despite the
expressed concerns of the Agency, staffing problems did not occur in
school year 1990-91. Because of this and situations in school years
1988-89 and 1989-90, in which the Agency failed to convert eligible
teachers until grievances were filed, the Arbitrator concluded that "the
Agency is over-sensitive in its demand for staffing flexibility." Id. at
10.
Accordingly, the Arbitrator sustained the grievance and directed that
all the grievants be converted effective the first day of the school
year 1990-91 and otherwise be made whole. With respect to grievants who
were terminated on the expiration of temporary appointments that should
have been converted, the Arbitrator ordered them reinstated
retroactively with backpay and benefits pursuant to the Back Pay Act.
In its opposition, the Union contends that the Agency's exceptions
should be dismissed for lack of jurisdiction insofar as the award
relates to the grievants who were terminated at the expiration of their
temporary appointments. The Union argues that those employees were
removed, and that under section 7122(a), the Authority does not have
jurisdiction over awards that relate to removals.
Under section 7122(a) of the Statute, exceptions may not be filed
with the Authority to an arbitration award relating to a matter
described in section 7121(f) of the Statute. The matters described in
section 7121(f) include adverse actions under 5 U.S.C. Section 7512,
such as removals, that have been taken against employees, as defined in
5 U.S.C. Section 7511. For example, U.S. Department of the Army, Army
Reserve Personnel Center and American Federation of Government
Employees, Local 900, 34 FLRA 319, 321 (1990) (Army Reserve Personnel
Center). The matters described in section 7121(f) also include matters
similar to those covered under section 7512 that arise in another
personnel system, such as the system established by the Defense
Department Overseas Teachers Pay and Personnel Practices Act, 20 U.S.C.
Sections 901-907 for Agency teachers. For example, U.S. Department of
Defense Dependents Schools, Germany Region and Overseas Education
Association, 38 FLRA 1432, 1435 (1991).
In Army Reserve Personnel Center, we found that the grievant was not
an employee within the meaning of section 7511 because she was a
temporary employee whose appointment was limited to 1 year or less. We
concluded that because the grievant was not an employee under section
7511, her termination was not an adverse action covered by section 7512.
34 FLRA at 321 (citing Horner v. Lucas, 832 F.2d 596, 597 (Fed. Cir.
1987); Compton v. Department of the Navy, 31 MSPR 402 (1986)).
Accordingly, we asserted jurisdiction because the award did not relate
to a matter covered by section 7121(f) of the Statute.
In this case, because the grievants who were terminated were
temporary employees, we similarly find that their terminations were not
matters similar to those covered under section 7512. Accordingly, we
conclude that the portion of the award pertaining to these grievants
does not relate to a matter described in section 7121(f) and that the
Agency's exceptions to the award are properly before us under section
7122(a) of the Statute.
A. Positions of the Parties
1. The Agency
The Agency contends that the award is deficient because it is
contrary to section 7121(c)(4) of the Statute and Federal Personnel
Manual (FPM) Supplement 296-33, subchapter S11-2. The Agency argues
that section 7121(c)(4) precludes grievances concerning appointments and
notes that the section does not limit the preclusion to only initial
appointments. The Agency further argues that the award conflicts with
the FPM definition of conversion, which defines a conversion as a change
"from one appointment to another appointment . . . ." FPM Supplement
293-33, subchapter S11-2(b). The Agency maintains that because a
conversion, in fact, concerns an appointment, a grievance concerning
conversion is not grievable or arbitrable under section 7121(c)(4). The
Agency also maintains that, like the award in Internal Revenue Service,
Indianapolis District and National Treasury Employees Union, Chapter 49,
29 FLRA 232 (1987) (IRS, Indianapolis), the award in this case
impermissibly orders the grievants converted to permanent appointments
and is contrary to law.
2. The Union
The Union contends that the grievance is not precluded by section
7121(c)(4). The Union argues that the grievance concerned whether the
Agency violated DoD Directive 1400.13 when it refused to convert the
grievants and did not concern a matter of appointment. The Union claims
that all the grievants have already been appointed and the grievance did
not concern the requirements of those appointments.
The Union also contends that the Agency's reliance on FPM Supplement
296-33 is misplaced. The Union argues that the FPM definition is not a
mandatory regulation that provides a basis on which the award can be
found deficient. The Union also argues that grievances concerning
appointments precluded by section 7121(c)(4) do not encompass grievances
concerning conversions, notwithstanding the FPM definition defining
conversion as a change from one appointment to another. The Union
asserts that the Authority has not found that grievances concerning
appointments after a grievant's initial appointment are precluded by
section 7121(c)(4). Finally, the Union argues that IRS, Indianapolis
does not support the Agency's contention that grievances over
conversions are precluded by law.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is
deficient.
In National Council of Field Labor Locals of the American Federation
of Government Employees, AFL-CIO and United States Department of Labor,
4 FLRA 376 (1980) (DOL), the Authority specifically addressed the
meaning of the term "appointment" as used in section 7121(c)(4) of the
Statute. The Authority examined the legislative history of the Statute
and relevant laws and regulations. On the basis of its examination, the
Authority determined that "general usage of the term 'appointment'
refers to the action which takes place at the time an individual is
initially hired into the Federal service." 4 FLRA at 381. In DOL, the
Authority applied the term "appointment" in section 7121(c)(4)
consistent with this common usage in finding that a grievance over the
separation of a probationer was not precluded by the Statute. The
Authority adhered to this application of section 7121(c)(4) in United
States Information Agency and American Federation of Government
Employees, Local 1812, 32 FLRA 739, 748 (1988), in concluding that a
grievance concerning the temporary assignment of an employee was not
precluded by the Statute. We will continue to adhere to this usage of
the term "appointment" in applying section 7121(c)(4) of the Statute.
Accordingly, because the grievance in this case did not concern the
initial appointments of the grievants, we conclude that no basis is
provided for finding that the grievance in this case is precluded by
section 7121(c)(4) of the Statute.
Because this exception concerns the Arbitrator's determination that
the grievance was not precluded by section 7121(c)(4) of the Statute, we
agree with the Union that the Agency's reliance on the FPM definition of
conversion in FPM Supplement 296-33 is misplaced. FPM Supplement 296-33
in no manner specifies that grievances over conversions from temporary
appointments to permanent appointments concern appointments within the
meaning of section 7121(c)(4) of the Statute. In our view, the Agency
is merely disagreeing with the Arbitrator's reasoning and conclusions in
determining that the grievance in this case was not precluded by the
Statute. Such disagreement provides no basis for finding the award
deficient. See, for example, U.S. Department of the Interior, Bureau of
Reclamation, Grand Coulee Project Office and Columbia Basin Trades
Council, 42 FLRA 166, 170 (1991).
We also agree with the Union that the Agency's reliance on IRS,
Indianapolis is misplaced. The Authority in IRS, Indianapolis did not
find that the award was precluded by section 7121(c)(4) of the Statute.
Instead, the Authority found that the award was deficient because the
award precluded the agency's authorized employment of a seasonal
employee. 29 FLRA at 234. In this case, the Agency makes no such
argument in its exception, and, consequently, we conclude that IRS,
Indianapolis provides no basis for finding the award deficient.
Accordingly, we will deny the Agency's exception.
A. Positions of the Parties
1. The Agency
The Agency contends that the award is contrary to section 7106(b)(1)
of the Statute. The Agency maintains that the conversion of teachers
from temporary to permanent appointments pertains to the numbers and
types of positions within the Agency and that it has not elected to
bargain over the matter. The Agency argues that by ordering the
retroactive conversion of approximately 200 teachers from temporary
appointments to permanent appointments, the award interferes with its
retained right under section 7106(b)(1) to determine the number and
types of positions within the Agency and that, consequently, the award
is deficient.
2. The Union
The Union contends that the Agency is confusing arbitration with
negotiability principles. The Union states that it did not submit
bargaining proposals concerning the conversion of teachers from
temporary to permanent positions and that it did not bargain with
management over conversions. The Union notes that the obligation to
convert employees was directly prescribed by the Agency's own
regulation. Thus, the Union asserts that the Agency's argument that its
right to determine numbers and types of employees or positions is
somehow interfered with by enforcement of its own regulation is without
merit.
Alternatively, the Union contends that the conversion ordered by the
Arbitrator does not interfere with management's right to determine the
numbers and types of employees. In particular, the Union disputes that
the award would require the Agency to increase by approximately 200 its
number of permanent positions. The Union argues that for school year
1990-91, the Agency had over 600 permanent positions that were filled by
new teachers. Thus, the Union claims that the award does not interfere
with management's right because a sufficient number of permanent
positions were available for conversion of the grievants.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is
deficient on the ground that it is contrary to the Statute.
This case involves a grievance over the claimed violation of
provisions of DoD Directive 1400.13, pertaining to the conversion of
temporary teachers. The Arbitrator found a violation of the directive
and enforced the terms of the directive in ordering the grievants to be
converted retroactively. The Agency contends that the provisions
pertaining to conversion concern matters covered by section 7106(b)(1)
of the Statute. We agree.
In Overseas Education Association and U.S. Department of Defense,
Office of Dependents Schools, 45 FLRA No. 118 (1992) (Proposals 6 and
7), we held that determinations as to whether an employee holding a
temporary appointment should be converted to a permanent appointment are
matters directly related to the numbers and types of employees or
positions under section 7106(b)(1) of the Statute. However, because
this is not a negotiability case, but an arbitration case in which the
Arbitrator has enforced the terms of an agency regulation affecting
conditions of employment, we also agree with the Union that
negotiability cases involving the right to elect not to bargain are not
dispositive of the outcome of this case.
The U.S. Supreme Court has made clear that some external limitations
on management rights under section 7106 are enforceable in arbitration.
In IRS v. FLRA, 494 U.S. 922, 924 (1990) (IRS), the Court recognized
that, unlike the framework for grievances and arbitration in the private
sector, in the Federal sector a collective bargaining agreement must
provide for procedures for the settlement of grievances, which are
defined to include any complaint concerning any claimed violation,
misinterpretation, or misapplication of any law, rule, or regulation
affecting conditions of employment. In IRS, the Court examined this
scheme and concluded that with respect to management rights under
section 7106(a)(2) of the Statute, the negotiated grievance procedure is
available to unions and employees to enforce certain external
limitations contained in "applicable laws." 494 U.S. at 931 (quoting
section 7106(a)(2)).
The prefatory language to section 7106(b)(1) is different from the
prefatory language to section 7106(a)(2). Where the prefatory language
to section 7106(a)(2) states that, subject to subsection (b) of that
section, nothing in the Statute shall affect the authority of
management, in accordance with applicable laws, to exercise the
enumerated rights, the prefatory language to section 7106(b)(1) merely
states that nothing in section 7106 shall preclude the agency and the
union, at the election of the agency, from negotiating over the
enumerated matters. In U.S. Department of Justice, Immigration and
Naturalization Service, United States Border Patrol, San Diego Sector,
San Diego, California, 38 FLRA 701 (1990) enforcement denied as to other
matters, Case No. 91-70162 (9th Cir. June 22, 1992), we recognized that
the prefatory language to section 7106(a)(2) on which the Court focused
in IRS does not, by its own terms, apply to section 7106(b)(1).
Accordingly, we held that the Court's analysis, which was based on the
language of section 7106(a)(2), was not applicable to matters involving
section 7106(b)(1).
Because section 7106(b)(1) does not have the constraining prefatory
language of section 7106(a)(2), we find that the external limitations on
management's rights under section 7106(b)(1) that are enforceable in
arbitration are more extensive than those relating to management's
rights under section 7106(a)(2). In particular, in view of the status
of agency regulations in arbitration, we conclude that an agency
regulation pertaining to a matter enumerated in section 7106(b)(1) may
constitute an external limitation on management's rights that is
enforceable in arbitration.
In U.S. Department of the Army, Fort Campbell District, Third Region,
Fort Campbell, Kentucky and American Federation of Government Employees,
Local 2022, 37 FLRA 186 (1990) (Ft. Campbell), we discussed in detail
the status of agency regulations in the context of arbitration. We
recognized that each Federal agency prescribes rules, regulations, and
official declarations of policy to govern and control the resolution of
matters to which they apply within the agency. We noted the decision in
Local 2855, AFGE v. U.S., 602 F.2d 574, 581 (3d Cir. 1979), in which the
court recognized that, under 5 U.S.C. Section 301, Congress has invested
the heads of every executive and military department with general
authority to prescribe regulations for the governing of their
departments and the conduct of their employees, and that, under 5 U.S.C.
Section 302, the heads of departments are permitted to delegate to
subordinate officials the authority to take final action on matters
pertaining to the employment, direction, and general administration of
personnel of their agencies. 37 FLRA at 194. We also noted that the
dominance of agency rules and regulations was acknowledged by the U.S.
Supreme Court in Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990), when
the Court stated that "(i)t is a familiar rule of administrative law
that an agency must abide by its own regulations." 495 U.S. at 654
(citing Vitarelli v. Seaton, 359 U.S. 535 (1959) (Vitarelli) and Service
v. Dulles, 354 U.S. 363 (1957)). Consequently, we concluded in Ft.
Campbell that an applicable agency regulation governs the disposition of
the matter resolved by an arbitration award when there is no applicable
collective bargaining provision.
Applying the analysis of Ft. Campbell to the issue in this case, we
hold that when an agency regulation pertaining to a matter covered by
section 7106(b)(1) of the Statute governs the disposition of a
grievance, it is consistent with management's rights under section
7106(b)(1) to enforce that regulation in arbitration. In holding that
such a regulation is enforceable as an external limitation on
management's rights, we emphasize that the focus of section 7106(b)(1)
is to permit bargaining while, at the same time, preserving management's
right to elect not to bargain over the enumerated matters. In enforcing
agencies' own regulations, arbitrators will not be forcing agencies to
assume contractual obligations in the face of an election not to
bargain, and agencies will not be committed to the regulatory provision
for the term of a collective bargaining agreement. Instead, arbitrators
will be enforcing only existing obligations as currently set forth in
the agencies' own regulations. Because these obligations will remain
regulatory and not contractual, the agencies retain the right to revise
or rescind the regulatory obligation at any time. Compare National
Treasury Employees Union Chapter 213 and 228 and United States
Department of Energy, Washington, D.C., 32 FLRA 578, 586-87 (1988) (the
Authority rejected the union's claim that a proposal was negotiable
because it was consistent with the provision of an agency regulation;
the Authority noted that the regulation conflicted with management's
rights and that incorporation of those restrictions into the collective
bargaining agreement would require management to comply with them for
the term of the agreement regardless of whether the agency revised or
rescinded the regulation).
In our view, this approach harmonizes IRS, Ft. Campbell, and the
Statute. A grievance over the claimed violation, misinterpretation, or
misapplication of an agency regulation affecting conditions of
employment may be submitted for resolution by an arbitrator, as
contemplated by Congress in defining "grievance" in section 7103(a)(9)
and in providing for binding arbitration in section 7121, while an
agency's right under section 7106(b)(1) to elect not to bargain over the
matters enumerated in that section is preserved and remains unaffected.
Because these provisions are unique to the Federal sector, such an issue
would never arise in the private sector.
Applying this approach in this case, we conclude that no basis is
provided for finding the award contrary to section 7106(b)(1) of the
Statute. We find that DoD Directive 1400.13 governs the conversion of
teachers from temporary appointments to permanent appointments and that,
consequently, the regulation was enforceable by the Arbitrator
consistent with section 7106(b)(1) of the Statute. As we advised in U.
S. Department of Defense, Army and Air Force Exchange Service and
American Federation of Government Employees, 45 FLRA 674 (1992), an
agency "must be rigorously held to the standards by which it professes
its actions to be judged." 45 FLRA at 690 (quoting Vitarelli, 359 U.S.
at 546 (Frankfurter, J., concurring in part and dissenting in part)).
Accordingly, we will deny the Agency's exception.
A. Positions of the Parties
1. The Agency
The Agency contends that the award is based on a nonfact. The Agency
notes that the Arbitrator's conclusion that the grievants were appointed
to continuing positions was based on his determination that there was a
need for the grievants' services for the full school year, as evidenced
by the Agency's use of the end of the school year as the NTE date on the
SF 50. The Agency asserts that such a finding is inconsistent with the
clear meaning of the term "not to exceed." The Agency claims that the
Arbitrator's determination that the term "not to exceed" is synonymous
with "must last until" is clearly erroneous. The Agency maintains that
because the award is based on this erroneous conclusion, the award is
deficient.
2. The Union
The Union contends that the Agency's exception constitutes nothing
more than disagreement with the Arbitrator's factual findings and his
reasoning and conclusions and that, consequently, the exception provides
no basis for finding the award deficient. The Union asserts that the
award is supported by the facts presented to the Arbitrator and that the
basis for the Arbitrator's determination was more extensive than simply
the NTE date on the SF 50.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is
deficient.
We will find an arbitration award deficient because it is based on a
nonfact when the central fact underlying the award is clearly erroneous,
but for which a different result would have been reached by the
arbitrator. For example, U.S. Department of the Air Force, San Antonio
Air Logistics Center, Kelly Air Force Base, Texas and American
Federation of Government Employees, Local 1617, 45 FLRA 797, 800 (1992).
The Arbitrator concluded that "(t)he objective evidence, however,
demonstrates that the educators were appointed to continuing positions."
Award at 8-9 (emphasis by the Arbitrator). Moreover, the Arbitrator
relied on evidence in addition to the NTE date in concluding that the
grievants had been appointed to a continuing position. He found that
the fact that the positions did last the entire school year supported
the Union's argument that the Agency needed the positions for the entire
school year. In our view, the Agency fails to establish that the
central fact underlying the award is clearly erroneous. We find that
the Agency is merely disagreeing with the Arbitrator's factual finding
that the grievants were appointed to continuing positions and with the
Arbitrator's evaluation of the evidence and testimony. Such
disagreement provides no basis for finding an award deficient. See id.
Accordingly, we will deny the Agency's exception.
The Agency's exceptions are denied.
45 FLRA 1379
45 FLRA NO 136
Dept. of Commerce, U.S. Patent and Trademark Office and NTEU, Chapter
245, Case No. 3-CA-10478 (Decided September 30, 1992)
7116(a)(1) and (5)
7106(a)(2)(B)
7106(b)(3)
UNFAIR LABOR PRACTICE
MGT'S RIGHT TO ASSIGN WORK
APPROPRIATE ARRANGEMENTS
SIGNATORY AUTHORITY
The Administrative Law Judge issued the attached decision finding
that the Respondent violated section 7116(a)(1) and (5) of the Statute
by implementing changes in its Signatory Authority Program (Program) for
trademark examiners without completing bargaining with the Charging
Party over the impact and implementation of the changes and by
bargaining in bad faith. The Judge recommended that the Respondent be
ordered to take appropriate remedial action.
The Respondent filed exceptions only to that portion of the Judge's
decision which found that the subsections of Article 1 that the Judge
designated as Proposals A, B, and C of that article were negotiable and
to the Judge's recommended order requiring it to bargain with the Union
on those proposals. The Authority concluded, contrary to the Judge,
that Sections A, B and C of Article 1 are nonnegotiable.
The Authority found that Article 1, which established the conditions
governing the recommending and granting of partial signatory authority
to Examining Attorneys, constituted an assignment of work under section
7106(a)(2)(B) of the Statute.
The Authority concluded that Section A directly interfered with the
Respondent's right to assign work under section 7106(a)(2)(B). The
Authority found that section B was also nonnegotiable because it was
dependent upon the requirements set forth in Section A. To the extent
that Section C incorporated the requirements set forth in Section B, the
Authority found that it was nonnegotiable. The Authority found that
Section C was not an appropriate arrangement within the meaning of
section 7106(b)(3).
Case No. 3-CA-10478
DEPARTMENT OF COMMERCE, U.S. PATENT AND TRADEMARK OFFICE
(Respondent/Agency)
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 245
(Charging Party/Union)
September 30, 1992
Before Chairman McKee and Members Talkin and Armendariz.
The Administrative Law Judge issued the attached decision finding
that the Respondent violated section 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute (the Statute) by implementing
changes in its Signatory Authority Program (Program) for trademark
examiners without completing bargaining with the Charging Party over the
impact and implementation of the changes and by bargaining in bad faith.
/1/ The Judge recommended that the Respondent be ordered to take
appropriate remedial action.
The Respondent filed exceptions only to that portion of the Judge's
decision which found that the subsections of Article 1 that the Judge
designated as Proposals A, B, and C of that article are negotiable and
to the Judge's recommended order requiring it to bargain with the Union
on those proposals. The General Counsel and the Charging Party filed
oppositions to the Respondent's exceptions. /2/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed. We affirm the rulings. Upon consideration of the Judge's
decision and the entire record, for the reasons set out below, we adopt
the Judge's findings, conclusions and recommended order to the extent
that they are consistent with this decision.
In addressing the Charging Party's proposals, the Judge stated that
the proposals "were initiated to conduct impact and implementation
bargaining." Judge's Decision at 9. The Judge ruled on the
negotiability of certain of the proposals, including those contained in
Article 1, which addresses partial signatory authority. /3/ The Judge
found, among other things, that Proposals A and B were distinguishable
from Proposal 1 that the Authority found nonnegotiable in Patent Office
Professional Association and Department of Commerce, Patent and
Trademark Office, 39 FLRA 783 (1991) (POPA) because Proposals A and B
did not "purport to restrict Respondent's assignment of partial
signature authority." Judge's Decision at 12. The Judge ruled that
Proposal C "tracks the Respondent's provision in its new Signatory
Program . . . and reflects no interference with management's right to
assign work since it is in line with Respondent's proposal in this
regard." Id. at 13. As such, the Judge found that the proposals
constituted negotiable matters concerning which the Respondent was
obligated to bargain.
Article 1 sets forth the conditions governing the recommending and
granting of partial signatory authority to Examining Attorneys. The
decision to grant partial signatory authority to Examining Attorneys
constitutes an assignment of work under section 7106(a)(2)(B) of the
Statute. See POPA, 39 FLRA at 789, 797. For the following reasons,
contrary to the Judge, we find that Sections A, B and C of Article 1 are
nonnegotiable.
A. Section A
We agree with the Judge that Section A does not require management to
grant partial signatory authority to an Examining Attorney. However, we
disagree with the Judge's determination that the proposal does not
restrict management's ability to assign partial signatory authority
because "it is left for management to decide whether to recommend the
(Examining) (A)ttorney for partial signatory authority." Judge's
Decision at 13.
As worded, the proposal permits Examining Attorneys to request Senior
Attorneys to recommend them for partial signatory authority after 6
months at any grade level and, for the first year of employment,
precludes Senior Attorneys from recommending Examining Attorneys for
partial signatory authority without the agreement of those attorneys.
In effect, Section A prevents management from assigning a specific duty
to an employee during the first 6 months of employment and limits
management's ability to assign that duty to an employee during the
second 6 months of employment without the employee's concurrence. As
such, we conclude that Section A directly interferes with the
Respondent's right to assign work under section 7106(a)(2)(B). See
POPA, 39 FLRA at 790 (proposal which dictates under what circumstances
and for what periods of time the Respondent will assign employees the
various stages of signatory authority directly interferes with
management's right to assign work).
Although Section A directly interferes with management's right under
the Statute to assign work, it nevertheless would be negotiable if it is
an appropriate arrangement within the meaning of section 7106(b)(3) of
the Statute. In determining whether a proposal is negotiable as an
appropriate arrangement for adversely affected employees under section
7106(b)(3), the Authority first determines whether the proposal is
intended as an arrangement for employees adversely affected by the
exercise of a reserved management right. Once the Authority determines
that the proposal is intended as an arrangement, the Authority
determines whether the proposed arrangement is appropriate or whether it
is inappropriate because it excessively interferes with management's
rights. National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA 24, 31-33.
The record establishes that Section A, among other things, is
intended to benefit employees adversely affected by the Respondent's
decision, pursuant to its right to assign work under section 7106(a)(
2)(B) of the Statute, to change the eligibility period for the
assignment of partial signatory authority from 1 year to 4 months. In
particular, the record establishes that the proposal is intended to
expand the time period for Examining Attorneys to be trained and to gain
experience in disposing of trademark applications beyond the 4 months
established by the Respondent, thereby affording the opportunity for
additional guidance prior to the recommendation of a Senior Attorney
that they be assigned partial signature authority. As such, we find
that Proposal A is intended as an arrangement for employees adversely
affected by the exercise of a management right.
However, the record does not establish that the benefit afforded
Examining Attorneys by the proposal would outweigh the limitation placed
by the proposal on management. Under the proposal, during the first
year of an Examining Attorney's employment, management's ability to
assign that attorney partial signatory authority would be severely
limited. Regardless of the Respondent's need to increase the numbers of
Examining Attorneys with partial signatory authority in order to respond
to the demands of its workload, management would be unable, during the
first 6 months of employment, to assign that authority to any Examining
Attorney it determined was qualified and, during the next 6 months, to
assign that authority to any Examining Attorney without that
individual's consent. In other words, the proposal significantly
restricts management's judgment as to an Examining Attorney's
qualifications and the options available to management for handling its
workload.
We find that the restrictions imposed by the proposal on management's
right to assign work are disproportionate to the benefit Examining
Attorneys would receive under it. Therefore, we conclude that Section A
excessively interferes with management's right to assign work under
section 7106(a)(2)(B) of the Statute and is nonnegotiable. See, for
example, POPA, 39 FLRA at 821 (proposal that would effectively take
determinations with regard to the assignment of work completely out of
the agency's hand and put them in the control of the employee or the
union found to excessively interfere with management's reserved rights).
Compare POPA, 39 FLRA at 837 (portion of proposal requiring the agency
to provide "adequate training" to patent examiners failing the agency's
signatory authority program found to be a negotiable appropriate
arrangement). Because we find that Section A is nonnegotiable for the
foregoing reasons, it is unnecessary to address the additional
contentions raised by the Respondent with respect to the negotiability
of the proposal.
B. Section B
Section B requires Senior Attorneys to recommend Examining Attorneys
for partial signatory authority under Section A when certain criteria
are met. As found above, Section A is nonnegotiable because one of the
requirements set forth in Section A -- the limitation of management's
ability to recommend the assignment of partial signatory authority to
Examining Attorneys during their first year of employment -- directly
and excessively interferes with management's right to assign work under
section 7106(b)(2) of the Statute. We find that Section B is
nonnegotiable because it is dependent upon the requirements, including
the nonnegotiable limitation noted above, set forth in Section A. See,
for example, American Federation of Government Employees, AFL-CIO,
Department of Education Council of AFGE Locals and Department of
Education, 34 FLRA 1078, 1090 (1990) (Department of Education). Because
we find that the proposal is nonnegotiable for the foregoing reasons, we
do not address the Respondent's remaining contentions with respect to
the proposal's negotiability.
C. Section C
Section C requires, among other things, that Managing Attorneys
review Senior Attorneys' recommendations for partial signatory authority
and approve the grant of that authority, in writing, provided Examining
Attorneys have met the criteria set forth in Sections A and B. The
Charging Party asserted before the Judge that Section C "concerned the
method by which approvals or denials of the grant of (partial) signatory
authority would be communicated . . . , not the substantive
approval/denial decision itself." Charging Party's Post-Hearing Brief at
7. However, by its terms, Section C requires management to "approve the
grant of partial signatory authority . . . provided the Examining
Attorney meets the above requirements." As such, Section C incorporates
the particular requirements set forth in Sections A and B that govern
the grant of partial signatory authority by the Managing Attorney.
Therefore, the Charging Party's explanation of the proposal is
inconsistent with the plain wording of the proposal. We will not adopt
an explanation of a proposal that is inconsistent with the plain wording
of the proposal. See, for example, National Federation of Federal
Employees, Local 1214 and U.S. Department of the Army, Headquarters,
U.S. Army Training Center, 45 FLRA 1121, 1130 (1992); POPA, 39 FLRA at
812.
As discussed above, Section A is nonnegotiable because it restricts
management's ability to assign partial signatory authority to Examining
Attorneys during their first year of employment. To the extent that
Section C incorporates this limitation, we find that Section C is also
nonnegotiable for the reasons stated in connection with Section A. See
Department of Education, 34 FLRA at 1090. Further, to the extent that
Section C incorporates the requirements set forth in Section B, we find
that it is nonnegotiable for the following reasons.
Section C provides, in relevant part, that Examining Attorneys must
meet the requirements set forth in Section B in order to be granted
partial signatory authority. By incorporating the criteria set forth in
Section B, Section C prescribes specific substantive criteria that must
be met prior to the grant of partial signatory authority by the Managing
Attorney. Proposals that prescribe substantive criteria governing the
assignment of signatory authority directly interfere with management's
right to assign work under section 7106(a)(2)(B) of the Statute. See,
for example, POPA, 39 FLRA at 793 (proposal establishing explicit
standards for the assignment of signatory authority places external
constraints on management's determinations as to whether employees are
qualified for the assignment and directly interferes with management's
right to assign work). We find, therefore, consistent with POPA, that
Section C directly interferes with management's right to assign work.
We note the Judge's finding that the proposal reflects the provisions
of the revised Program and is similar to the Respondent's current
practice. Further, we note that the criteria prescribed by Section C
are less restrictive than the criteria established in the Respondent's
revised Program. However, we also note that proposals that restate the
terms of an agency policy established pursuant to the exercise of a
management right are not thereby rendered negotiable. See National
Association of Government Employees, Local R4-45 and U.S. Department of
the Navy, Navy Resale and Services Support Office, Norfolk, Virginia, 40
FLRA 56, 61 (1991).
Moreover, because Section C incorporates portions of the requirements
of the Respondent's revised Program, the proposal is distinguishable
from section 2 of Article 6 at issue in National Treasury Employees
Union and Department of the Treasury, Office of the Chief Counsel,
Internal Revenue Service, 40 FLRA 849, 859 (1991), enforced in part and
vacated and remanded in part as to other matters, 960 F.2d 1068 (D.C.
Cir. 1992), cited by the Charging Party. First, section 2 of Article 6
in that case referred generally to the agency's Rules of Conduct, rather
than incorporating the provisions of those rules. Secondly, the issue
in that case was whether the use of the term "Office" in the proposal
constituted an assignment of work. In this case, the issue is whether,
by incorporating provisions of the Respondent's revised Program, the
proposal directly interferes with management's right to assign work. As
we found above, because the proposal prescribes substantive criteria
governing the exercise of the Respondent's right to assign work under
section 7106(a)(2)(B) of the Statute, it directly interferes with that
right.
Accordingly, Section C is nonnegotiable unless it is an appropriate
arrangement within the meaning of section 7106(b)(3). Applying the
analytical framework established in KANG, we find that Section C is not
an appropriate arrangement.
Even if we assume that the criteria governing the Managing Attorney's
decision to grant partial signatory authority constitute an arrangement
for Examining Attorneys adversely affected by the Respondent's right to
assign work under section 7106(a)(2)(B) of the Statute, we cannot
conclude that the benefit afforded to Examining Attorneys by such an
arrangement would outweigh the constraints imposed by the proposal on
the exercise of management's reserved right. Because the proposal
requires management to grant partial signatory authority to Examining
Attorneys who meet the proposed criteria, we find that the proposal
would preclude management from establishing additional criteria, even if
management were to determine that such criteria were necessary to ensure
the ability of the Examining Attorneys to process trademark applications
properly. Although the proposal would benefit Examining Attorneys by
allowing them to be granted partial signatory authority under less
demanding criteria than those contained in the Respondent's revised
Program, balancing that benefit against the limitation on management's
ability to determine the qualifications necessary for partial signatory
authority, we find that Section C excessively interferes with
management's right under section 7106(a)( 2)(B) of the Statute to assign
work. Consequently, we conclude that Section C is nonnegotiable.
Because we have found that Sections A, B, and C of Article 1 are
nonnegotiable, the Judge's recommended order in this case is modified to
exclude Sections A, B, and C of Article 1 from those proposals on which
the Respondent is required to bargain.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Department of Commerce, U.S. Patent and Trademark Office,
shall:
1. Cease and desist from:
(a) Failing and refusing to negotiate in good faith with the
National Treasury Employees Union, Chapter 245, the exclusive
representative of a unit of its employees, over negotiable
proposals concerning the procedures to be observed in implementing
its decision to revise its Signatory Authority Program and the
appropriate arrangements for employees adversely affected by such
revision.
(b) In any like or related manner interfering with, restraining
or coercing its 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 Federal Service
Labor-Management Relations Statute:
(a) Upon request, negotiate in good faith with the National
Treasury Employees Union, Chapter 245, the exclusive
representative of a unit of its employees, over procedures to be
observed in implementing its decision to revise its Signatory
Authority Program and the appropriate arrangements for adversely
affected employees, including the negotiable proposals made by the
National Treasury Employees Union, Chapter 245.
(b) Post at its facilities where bargaining unit employees
represented by the National Treasury Employees Union, Chapter 245
are located, 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 Commissioner of Patent
and Trademarks, 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 insure
that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the 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.
WE WILL NOT fail and refuse to negotiate in good faith with the
National Treasury Employees Union, Chapter 245, the exclusive
representative of a unit of our employees, over negotiable proposals
concerning the procedures to be observed in implementing our decision to
revise our Signatory Authority Program and the appropriate arrangements
for employees adversely affected by such revision.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL, upon request, negotiate in good faith with the National
Treasury Employees Union, Chapter 245, the exclusive representative of a
unit of our employees, over the procedures to be observed in
implementing our decision to revise our Signatory Authority Program and
the appropriate arrangements for adversely affected employees, including
the negotiable proposals made by the National Treasury Employees Union,
Chapter 245.
(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 any of its provisions, they may communicate directly with the
Regional Director, Washington Regional Office, Federal Labor Relations
Authority, whose address is: 1111 18th Street, NW, 7th Floor, P.O. Box
33758, Washington, DC 20033-0758, and whose telephone number is: (202)
653-8500.
Article 1, entitled "Partial Signatory Authority," provides in
relevant part that:
A. Examining Attorneys may be recommended for partial
signatory authority after being employed with the TMEO for at
least six months, at any grade level. Recommendations for partial
signatory authority will be initiated at the request of the
Examining Attorney, by the Senior Attorney responsible for
training. The Senior Attorney may recommend partial signatory
authority only with the concurrence of the Examining Attorney.
After one year of employment, requests for partial signatory
authority may be initiated by the Senior Attorney alone.
B. The Senior Attorney will recommend the Examining Attorney
for partial signatory authority, under (A) above, if the following
criteria are met:
1) the attorney is admitted to the bar;
2) the attorney has a demonstrated knowledge of trademark law,
Office practice and procedure, and has demonstrated the ability to
act independently on both new and amended cases.
C. The Managing Attorney will review the recommendation for
partial signatory authority and will approve the grant of partial
signatory authority in writing, provided the Examining Attorney
meets the above requirements. Any denial of partial signatory
authority will be made in writing, with an explanation of the
reasons for the refusal.
Case No. 3-CA-10478
DEPARTMENT OF COMMERCE, U.S. PATENT AND TRADEMARK OFFICE
Respondent
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 245
Charging Party
James R. Lawrence, Esq., For the Respondent
Laurence Evans, Esq., Counsel for the General Counsel
Aileen Johnson, Esq., For the Charging Party
Before: WILLIAM NAIMARK, Administrative Law Judge
Pursuant to a Complaint and Notice of Hearing issued on July 31, 1991
by the Regional Director, Federal Labor Relations Authority, Washington
Region Office, a hearing was held before the undersigned on October 29,
1991 at Washington, DC.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based
on a charge filed by the National Treasury Employees Union, Chapter 245
(herein called the Union) on April 22, 1991 against the Department of
Commerce, U.S. Patent and Trademark Office (herein called the Respondent
or Agency).
The Complaint alleged, in substance, that on or about March 8, 1991
Respondent implemented changes in its Signatory Authority Program /4/
without completing bargaining over the impact and implementation
proposals submitted by the Union on January 8, 1991 -- all in violation
of section 7116(a)(1) and (5) of the Statute.
Respondent's Answer, dated September 9, 1991, while admitting that
the Union made certain proposals re the aforesaid Program, denied that
Respondent implemented the Signatory Authority Plan in violation of the
Statute as alleged in the Complaint.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Briefs were filed with the undersigned which
have been duly considered.
Upon the entire record, from my observation of the witnesses and
their demeanor, and from all of the testimony and evidence adduced at
the hearing, I make the following findings and conclusions:
1. At all times material herein the Union has been, and still is,
the certified bargaining representative of an appropriate unit of
Respondent's employees.
2. Respondent's trademark operations consist of approximately 400
employees. Included therein are 176 examining attorneys who review
trademark applications involving the registration thereof. Such
applications are either approved or ultimately denied.
3. A system is utilized by Respondent which governs the
responsibility and authority of examining attorneys to sign their
actions in respect to trademark applications. This is known as the
Signatory Authority Program.
4. After an attorney begins as an examiner, he is not permitted to
sign his actions without approval from a mentor or senior attorney.
When he meets certain criteria re his performance, he is eligible to be
granted Partial Signatory Authority to sign all non-final actions or
dispositions. In preparation for Full Signatory Authority the attorney
may be granted temporary authority to sign all final actions. That
authority is designated as Probationary Full Signatory Authority. He
then may be given Full Signatory Authority, which is permanent authority
to sign and take final actions without approval from a senior attorney.
5. In the fall of 1990 Respondent sent Mary F. Bruce, president of
the union, a draft of proposed changes in the "Signatory Authority
Procedures." These Procedures /5/ provide for the grant of independent
signatory authority in stages based on the evaluation of the attorney's
performance and ability to act independently. Three types of signatory
authority are covered: Partial Signatory Authority, Probationary Full
Signatory Authority, and Full Signatory Authority.
In respect to all three stages and the granting of authority at each
one, the Procedures set forth (a) the necessary criteria in order to be
awarded the grant of authority, and (b) the necessary steps in the
recommendation for granting authority. In regard to the grant of
Partial Signatory Authority, the Program provides that the attorney's
mentor may recommend such authority for the attorney if the latter has
at least four months in office experience and a total of at least 300
actions.
As to the grant of Probationary Full and Full Signatory Authority to
attorneys, the new Program provides for the review by the managing
attorney of 10 cases of the attorney before he is granted either
authority. Provision is also made in regard to each of these two grants
of authority for the review by the senior attorney of cases handled by
the examining attorney. Evaluation is made of the performance by the
attorney as well as the quality of the latter's actions. Further, in
respect to Probationary Full Authority and Full Signatory Authority, the
Plan sets forth an appeal to the Administrator for Trademark Policy when
the managing attorney denies a grant of either such authority.
6. On or about December 6, 1990 a meeting was held between Union
officials and management representatives concerning the proposed
changes. The Union was concerned as to the impact of the changes and
the matter was discussed. Respondent's group said it believed that no
substantial changes had been made and any impact was insignificant.
Union officials stated they would submit proposals in that regard.
7. Under date of January 8, 1991 Union President Bruce sent Director
David E. Bucher the Union's proposals /3/ regarding the Signatory
Authority Procedures. It also indicated its desire to commence
bargaining on the issue.
8. Article 1 of the Union's proposals deals with Partial Signatory
Authority. It provides, in substance:
(a) For the recommendation of attorneys for this authority
after six months employment, and recommendations to be by the
Senior Attorney with concurrence of the examining attorney. After
one year, it may be initiated by the Senior Attorney alone.
(b) The criteria for such recommendation.
(c) For the review of the recommendation by the Managing
Attorney and for an explanation in writing if the grant of such
authority is denied.
(d) That the office instruct Senior Attorneys to provide new
employees with the policy re this authority.
(e) The office will not use quality review results as the sole
basis for terminating an employee who is granted this authority in
his first year.
(f) For a reevaluation of a grant of this authority if made in
the first year of an attorney's employment; for additional
training if quality review indicates additional training would
benefit the attorney; for automatic reinstatement to this
authority at the end of four months additional training of the
attorney.
(g) That a failure to recommend an attorney for this authority
will not be used by the Office in selection of employees for
promotion, details or special projects.
9. Article 2 of the Union's proposals deals with Probationary Full
Signatory Authority. It provides, in substance:
(a) For the eligibility of an attorney for this authority six
months prior to his eligibility for full signatory authority.
(b) For initiating a recommendation of the attorney for this
authority by the Managing Attorney at least two weeks before the
pay period in which the attorney becomes eligible.
(c) The eligibility requirements for the recommendation.
(d) The period in which the attorney will remain in this
status, and the modification of the period where the
recommendation was untimely made or delayed.
10. Article 3 of the Union's proposals deals with Full Signatory
Authority and provides, in substance:
(a) Requirements for recommending eligibility for this
authority, and for initiation of a recommendation by the Manager
within 90 days after the attorney is first denied such authority.
(b) For the grant of authority to an attorney rated commendable
or higher on critical elements and quality of writing without a
need for a further review of cases.
(c) For the eligibility of an attorney for this authority who
is rated at least fully successful in the critical elements under
a specified system. This system provides for a review of the
attorney's cases by a committee of two Senior Attorneys in accord
with Respondent's proposal in Section E (3), but with an exception
that only the most recent error by an attorney be counted; that
the Managing Attorney would review all selected cases and appeal
briefs, and under what circumstances he will deny full signatory
authority; that errors found by the Managing Attorney resulting
in a denial of such authority will be submitted to the
Administrator for Trademark Policies and Procedures for de novo
review.
Under the aforesaid system it is proposed that full authority be
granted if the Managing Authority finds fewer than one substantive or
three procedural errors in cases; that, if authority be denied, 10
additional cases of the attorney be reviewed; that the review of cases
be completed within one month of the process and any grant of authority
and the promotion to GS-13 be retroactive if management delays the
review; and that a second review be initiated in 90 days after a denial
of this Authority.
11. Article 4 of the Union's proposals provides as follows:
A. Production requirements will be determined by the grade
level of the employee, rather than being linked to signatory
authority status.
12. Article 5 of the Union's proposals provides as follows:
A. Until a final plea for grants of signatory authority is
established, the procedure outlined in the March 3, 1986 memo
concerning signatory authority will remain in effect.
13. In reply to the aforesaid proposals the Respondent wrote Bruce
on January 31, 1991. The letter advised the Union that management felt
it had no duty to bargain. It deemed most of the proposals interfered
with management rights and are nonnegotiable. The remainder, it was
felt, were unrelated to the changes proposed by management and beyond
the scope of bargaining. Respondent stated that the Union's proposals
were not appropriate impact or implementation proposals.
14. The Union responded on February 11, 1991 by a letter addressed
to Assistant Commissioner Jeffrey M. Samuels wherein the Union expressed
its willingness to examine any negotiability issue and consider
redrafting its proposals. Further, the Union stated its desire to meet
and discuss the negotiability concerns of management.
15. About a week later the parties met. The Union mentioned its
concern re a "blanket push" of new attorneys to partial signatory
authority before they were ready and received adequate training.
Management repeated its feeling that it did not have a duty to negotiate
with the Union.
16. Under date of February 25, 1991 Respondent wrote Bruce that, as
a result of the Union's concerns, management would amend its program in
four respects; (a) consultation to take place between the attorney and
the senior/mentor attorney prior to the latter's recommendation for
partial signatory authority; (b) denial of partial signatory authority
by managing attorneys must be in writing with the reasons for denial;
(c) automatic review or appeal of all error determinations by the
Administrator for Trademark policy and procedure where managing
attorneys finally denys either probationary or full signatory authority;
/7/ (d) after final denial of either probationary or full signatory
authority, the attorney becomes eligible again in three months rather
than in six months as earlier provided.
The letter also advised Bruce that, as a result of the amendments,
management saw no need to negotiate further with the Union.
17. With respect to the aforesaid amendments Bruce testified that as
to No. 1 (consultation), the Union may want other procedures to protect
attorneys; as to No. 2 (written denial of partial signatory authority),
this conformed to the Union's desires; as to No. 3 (automatic review by
the Administrator of error determinations), the Union wanted to discuss
and be involved in drafting a proposal if there was an appeal procedure;
as to No. 4 (eligibility in 3 months after denial for probationary full
signatory authority or full signatory authority), that did address the
Union's concerns.
18. Further testimony by Bruce reflects the Union was also concerned
as to: (a) the effect of receiving early probationary full signatory
authority which would not allow for adequate training; (b) delays in
initiating the processing of full signatory authority procedures which
prevent attorneys from receiving promotions in a timely fashion; (c)
disparate treatment in respect to an attorney's qualification for full
signatory authority, since under the new procedures a review of the
attorney's work is delegated to the manager in each office. The Union
contended this could result in disparate treatment of attorneys since
each manager could come to a different conclusion as to an individual's
qualifications, which would leave room for subjective determinations in
regard to an individual's qualifications.
19. Record facts show the same training exists under the new Plan as
previously, the training period covers 12 weeks with a series of
lectures, and each attorney is assigned a senior/mentor attorney. The
shortened eligibility period (4 months vs. 1 year) for the grant of
partial signatory authority was occasioned by the fact that many new
attorneys had extensive trademark experience before coming to
Respondent. Management wanted a system permitting said attorneys to be
treated as full-fledged professionals.
20. Respondent implemented the changed Signatory Authority Program
on March 8, 1991 and sent a copy thereof to its examining attorneys.
The Complaint alleges that Respondent implemented its Signatory
Authority Program without completing negotiations with the Union over
the negotiable impact and implementation proposals submitted by the
Union. /8/
While acknowledging that it changed its Program re the grant of
signatory authority, Respondent contends the changes were de minimis in
nature and created no duty to bargain. Further, it asserts that the
proposals submitted by the Union were nonnegotiable and thus imposed no
duty to bargain with the Union in respect thereto.
It is not disputed that Respondent may institute new Signatory
Authority Procedures as a management right without bargaining as to its
decision in that regard. However, the General Counsel and the Union
assert that, notwithstanding this prerogative, an agency is required to
negotiate as to the impact and implementation of such changes. Contrary
to Respondent, they also contend that management herein did not bargain
as to the effect of the changed Procedures, but implemented them prior
to completing negotiations thereon.
The Authority has recognized that the exercise of a reserved
management right to change conditions of employment can carry with it a
correlative duty to bargain re the impact and implementation of such
changes. 56th Combat Support Group (TAG), MacDill Air Force Base,
Florida, 43 FLRA 434; Department of Transportation, Federal Aviation
Administration, Washington, DC, 20 FLRA 486.
Respondent's contention that since the Union failed to either revise
its proposals or file a negotiability appeal, no duty devolved upon it
to bargain with the Union. This argument is rejected. The thrust of
the Complaint herein concerns the refusal to negotiate as to the changes
made by Respondent in its Signatory Authority Procedures. The issue
centered on the obligation of management, as contended by the General
Counsel, to bargain as to the impact and implementation of such changes.
It did not rise to the level of a negotiability appeal concerning the
proposals made by the Union, and the latter did not see fit to institute
such an appeal. The proposals made by the Union were initiated to
conduct impact and implementation bargaining. There was no requirement,
under these circumstances, that it resort to the negotiability
procedures set up by the Authority's regulations. /9/
Apart from the negotiability of the Union's proposals, I am persuaded
that Respondent had no intention to bargain with the Union as to the new
Signatory Authority Procedures. While management listened to the
Union's concerns as to: there being less time for training, disparate
review by 13 managing attorneys before granting signatory authority to
examining attorneys, and the proposed automatic appeal procedures, it
did not engage in negotiations with respect thereto. Respondent
indicated in its letters to the Union of January 31, 1991 and February
25, 1991 that it did not believe it was necessary to bargain with the
Union. This position is borne out by Union President Bruce's testimony
that management said at a meeting in January 1991 there was no need to
meet with the Union. Further, Respondent's Deputy Assistant
Commissioner testified that management met with the Union in February
1991 to have an informal conversation, but the agency felt there was no
duty to bargain. Anderson testified that no management official
indicated it would engage in formal bargaining on the new program.
An employer does not meet or fulfill its duty to bargain by merely
meeting with the Union and listening to its concerns. It must manifest
an intention to reach a negotiated agreement. In the instant case the
record is persuasive that Respondent did not bargain in good faith as to
the new program and the particular features which the Union sought to
negotiate. Thus, the implementation of the program without bargaining
thereon would, unless otherwise excused, be violative of the Statute.
See Social Security Administration, 18 FLRA 511.
There is a sharp dispute as to whether the changes in the program
herein were de minimis in nature. Respondent insists that the changes
in its Signatory Authority Procedures had little impact on working
conditions and thus created no duty to bargain.
The Authority laid down its revised standards for determining whether
a change is de minimis in Department of Health and Human Services,
Social Security Administration, 24 FLRA 403 (1986). It concluded that
emphasis would be placed on such general areas of consideration as the
nature and extent of the effect or reasonably foreseeable effect of the
change in conditions of employment. Further, equitable considerations
would be considered in balancing the various interests involved; the
number of affected employees and the history of collective bargaining
would be given limited application; and the size of the unit would no
longer be a factor.
Applying the foregoing yardsticks to the case at hand, I am satisfied
that the particular changes in the Signatory Authority Procedures, which
the Union insists are bargainable as to their impact and implementation,
are more than de minimis.
In respect to the change of eligibility for Partial Signatory
Authority from one year to four months, this may well impinge upon the
training time of the examining attorneys. While it may be true, as the
Respondent argues, that no attorney has been denied this authority, the
shortened period could affect his experienced capability concerning the
work product. The change which cuts eligibility eight months, is not
mandatory and impacts upon the guidance afforded the attorney and his
ultimate skill.
The change in the initial review of an attorney's work is substantial
in nature. Delegating this task to 13 different managers in place of
the earlier procedure whereby review was made by the Administrator, does
result in less uniformity in respect to the inspection and grading of
the work of an attorney. This could well result in differing standards
being applied as to an attorney's readiness for the grant of signatory
authority. That disparate treatment could ensue is truly foreseeable
and could have a marked effect upon the treatment of the attorneys in
this regard.
The record reflects concern by the Union as to the automatic appeal
to the Administrator when the managing attorney denies signatory
authority. This change provides for ultimate determination by the
individual who previously reviewed the attorney's cases and work
product. Since the change is part of the entire review process, albeit
providing for an automatic appeal, it does affect the standing and
status of the attorney who has been denied such authority. As such, it
does have an impact upon his conditions of employment, and the Union
might want to discuss the procedures involved in such appeals and their
part therein.
The nature of those changes made by Respondent lead me to conclude
that they do have a foreseeable effect upon the working conditions of
the examining attorneys. The various concerns raised by the Union which
relate to training, disparate treatment of attorney's work by different
managing attorneys, and the automatic appeal procedures -- all are
factors affecting a significant number of employees and are not of a
limited nature. Thus, I conclude the said changes in the program are
more than de minimis. Respondent's failure and refusal to bargain
therein over the impact and implementation of changes in the Signatory
Authority Procedures violated section 7116(a)(1) and (5) of the Statute.
Turning to the proposals by the Union in regard to the Signatory
Authority Program, Respondent insists it had no obligation to bargain
thereon since they are nonnegotiable. It adverts to the similar
authority program, which involved Respondent's patent examiners, that
was discussed by the Authority in Patent Office Professional Association
and Department of Commerce, Patent and Trademark Office (herein called
POPA), 39 FLRA 783. Respondent contends that many of the proposals in
the cited case, which are similar to ones proposed by the Union herein,
were found by the Authority to directly interfere with management's
right to assign work and are therefore not negotiable.
The proposals by the Union concern the grant to attorneys of
authority which may be partial, probationary full, or full. In
determining the negotiability of those proposals, note must be taken of
the Authority's decision in National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24. In
that case the Authority set forth the necessary considerations where
management alleges a union proposal is not negotiable because it
conflicts with management rights in section 7106(a) or (b)(1). Firstly,
it must be ascertained whether a proposal is intended to be an
arrangement for employees adversely affected by the exercise of such
rights. The union must, nevertheless, articulate how employees will be
detrimentally affected by management's actions and how the proposal will
address any adverse effects. If it be concluded that the proposal is
intended as an arrangement, then it must be determined whether the
arrangement is appropriate. Should it be decided that the proposal
excessively interferes with the exercise of management's rights, the
proposal will be deemed inappropriate and in conflict with section
7106(b)(3). In evaluating whether a proposal is a proper procedure for
negotiations under section 7106(b)(2), the applicable test is whether
the proposal was a "direct interference" with a management right.
Partial Signatory Authority Proposals (Article 1)
In respect to Proposals A, B and C under this category, Respondent
insists they restrict its ability to assign this authority to examining
attorneys. Further, it is asserted they interfere with that right since
they attempt to define the time period, amount of work and level of
performance in order to receive partial signatory authority. Such
proposals, it is argued, are controlled by the Authority's decision in
the POPA case, supra. (Proposal No. 1).
The particular proposals in A do not purport to restrict Respondent's
assignment of partial signatory authority. It is provided that an
attorney may be recommended for this grant of authority after six months
of employment; that it would be initiated at the request of the
attorney; that the Senior Attorney may recommend this assignment. This
proposal differs markedly from Proposal 1 in the POPA case, which
Respondent refers to as dispositive in finding the one at hand to be
nonnegotiable. The POPA proposal requires that an examiner be granted
partial signatory authority when performing subspectorily for six months
at the GS-13 level. It also stipulates the number of minimum hours of
performing his functions with a requirement that, if competence be
established, the attorney be granted this authority. There is no
attempt under A herein to abridge management's right under section 7106.
Neither is this proposal an interference with management's right to
assign since it is left for management to decide whether to recommend
the attorney. I conclude the A proposal is a negotiable matter and
Respondent was under an obligation to bargain thereon as to its impact
and implementation.
Similarly I conclude that proposal B is negotiable since it merely
sets forth basic eligibility requirements for this grant of authority
which management would require before ever assigning it. It does not
provide for a mandatory grant, and in no way interferes with
management's rights under section 7106. In truth, the same provisions
are contained in Respondent's new Program which it implemented in March
1991.
With respect to C re the managing attorney reviewing the
recommendation for partial signatory authority and the written
notification to an attorney of any denial thereof, I conclude this is a
negotiable proposal. It tracks the Respondent's provision in its new
Signatory Program set forth in C (3) (Approval/Denial of Partial
Signatory Authority), and reflects no interference with management's
right to assign work since it is in line with Respondent's proposal in
this regard.
Respondent contends that the D proposal is nonnegotiable since it
assigns work to specific managers within a particular time period. I
conclude that this proposal constitutes a negotiable procedure under
section 7106(b)(2) of the Statute. This merely calls for Respondent to
have the senior attorneys provide new employees with a copy of the
partial signatory authority policy during their first month of
employment. It places no substantive restriction on the agency's
ability to act re its reserved rights and is within the duty to bargain.
/10/
Respondent contends that proposal E is a direct interference with its
ability to retain employees or take disciplinary action against them.
This provision does restrict management's rights under section
7106(a)(2)(A) of the Statute. It is not articulated how employees could
be detrimentally affected by management's action and thus intended as an
appropriate arrangement. The proposal would, moreover, excessively
interfere with management's right to decide as to termination of an
employee. I conclude this is not a negotiable proposal and outside the
duty to bargain. /11/
The proposal in F provides that management may reevaluate its grant
of this authority when granted during the first year of employment. If
the reviews in the first two months after the grant indicate the
attorney could benefit from additional training, Respondent may review
that attorney's cases for four months and provide additional training to
enable him to perform effectively. Further, at the end of four months
training partial signatory authority will be automatically reinstated.
Respondent insists this proposal interferes with its ability to
review an employee's work and therefore violates section 7106(a)(2)(A)
and (B) of the Statute.
With respect to the proposed training of attorneys under the
aforesaid circumstances, this is a matter which affects the working
conditions of these individuals. They have a substantial interest in
evaluation and training. It is true that proposals requiring agencies
to provide training have been found to directly interfere with
management's right to assign work, Fort Eustis, 33 FLRA 395. However,
in POPA the Authority held that a proposal to train examiners was a
negotiable appropriate arrangement. The same conclusion is reached here
with respect to the proposed additional training. It does not mandate
the schedule or duration of the training, and as such is a negotiable
arrangement. See American Federation of Government Employees, Local
3231 and Social Security Administration, 22 FLRA 868, 872-74.
The provision for reevaluating a grant during the two months
following a grant of this authority is at the option of the Respondent,
and is related to the additional training. The decision as to whether
reevaluation should be made is left to management and does not
excessively interfere with managements rights under the Statute. It is
also negotiable as an appropriate arrangement.
The last clause in proposal 7 provides for the automatic
reinstatement of partial signatory authority at the end of an additional
four month training period. This interferes with management's right to
assign work. While it may be said that this is an appropriate
arrangement for negotiations. I consider this to be an excessive
interference with management's right to assign work is and not
negotiable.
In respect to proposal G, I agree with Respondent that it directly
interferes with management's right to promote and assign work under
section 7106(a)(2)(B). It is an excessive interference since the
proposal would dictate the circumstances of the selection of employees
for promotion or special projects, and hence cannot be deemed an
appropriate arrangement.
Probationary Full Signatory Authority (Article 2)
The proposals under A and B of this authority grant do interfere
directly with management's rights to assign work and are nonnegotiable.
(See POPA, supra). The initial proposal mandates the eligibility period
for probationary full signatory authority. Proposal B requires the
Managing Attorney to recommend an examining attorney for this grant of
authority under explicit standards. They set the required time for
successful performances, call for the attorney in retaining partial
signatory status for three months if he is ineligible for probationary
full authority, and requires that where a grant is delayed due to the
Managing Attorney within a specified time frame, the examining attorney
shall remain in probationary full authority status (where approved)
until he meets the requirements for promotion to GS-13.
These proposals are an infringement upon management's right to assign
work. They prescribe explicit criteria and circumstances for approval
of this grant of authority and are a direct interference with
management's rights under the Statute.
Note is also taken that the record does not contain sufficient facts
upon which to make a determination that these proposals would constitute
an appropriate arrangement. A party who so contends is required to meet
this burden or act at its peril. American Federation of Government
Employees, Local 3272, and Department of Health and Human Services,
Social Security Administration, Chicago Regional Office, 34 FLRA 675.
Full Signatory Authority (Article 3)
Proposals under A, B and C are the eligibility for recommendation
requirements which include (1) being eligible for a promotion to a
GS-13, (2) performing fully satisfactory for 90 days during a prescribed
period, (3) initiation by the Manager within 90 days if the attorney
fails to meet requirements in A and the attorney's performance improves
to meet fully successful criteria, (4) mandating the grant of this
authority without need of further case review when the attorney attains
a specified rating on all critical elements and the quality of his
writing in quality review while on probationary full authority.
The proposals in A, B and C are similar to those proposed by the
Union in Article 2 dealing with Probationary Full Signatory Authority.
They interfere with management's rights to assign work under section
7106(a)(2)(A) of the Statute. Proposals A (1) and (2) set the
preliminary requirements for the recommendation of an attorney for full
authority. In proposing that an attorney will be recommended for this
grant of authority when he is eligible for promotion to a GS-13, the
proposals conflict with management's right to assign work. Both A (1)
and (2) dictate the circumstances under which an employee will be
granted this authority and the time prerequisites for such
recommendation. There is, moreover, no showing that these proposals are
an appropriate arrangement. I conclude they are nonnegotiable.
With respect to A (3) of this article, I conclude that such a
proposal is negotiable and warrants bargaining therein. The initial
clause referring to the knowledge of trademark law as well as office
practice as procedure conforms, in fact, to Respondent's new signatory
authority plan as set forth in C (1) (c). The remainder of the proposal
merely requires the Respondent to provide written explanation for any
denial of full signatory authority. The Authority has held that section
7106 does not limit the disclosure of information which is the product
of its decision-making process involving the exercise of management's
right. See American Federation of Government Employees, AFL-CIO,
National Council of Field Assessment Locals and Department of Health and
Human Services, Social Security Administration, 32 FLRA 982.
The proposals in C and D are also not negotiable matters. They
mandate the granting of full signatory authority to an attorney provided
he attains a certain rating on the critical elements. Further, they
preclude any further review of the attorneys' cases. Under D it
establishes the system under which attorneys, rated at least fully
successful, will be eligible for recommendations to the status of full
signatory authority.
This system calls for the Managing Attorney to direct a review of 10
cases of the attorney no later than 5 weeks prior to the latter's
eligibility for a GS-13. It provides for the review of those cases by
two senior attorneys and regulates the errors to be counted. It details
a review by the Managing Attorney of the selected cases, and the
circumstances under which substantive errors by the attorney justifies a
provisional denial of full signatory authority or warrants granting it.
The D (8) proposal requires the review to be completed in a month and
for the retroactive grant of this authority if Respondent delays the
review. Finally, it calls for a second review with the same procedure
in 90 days if the attorney is finally denied this full signatory
authority.
The right to assign work includes, as the Authority has held, the
right to determine qualifications of employees as well as what data is
required to make that determination. Limiting the agency's discretion
to determine how many cases to review, the proposal interferes with the
Respondent's right to determine what data it needs with respect to the
assignment of the stages of the Signatory Authority Program. Thus, this
aspect of the proposal directly interferes with management's right to
assign work under section 7106(a)(2)(B) of the Statute. See POPA, at
805.
Further, setting the number of reviewers to be assigned to cases is a
direct interference with the Agency's right to determine the number,
types and grades of employees assigned to work under section 7106(b)(
1).
In proposing under D (6) for the granting of full signatory authority
based on the few errors found by the Managing Attorney, it does not
negate a conclusion that such proposal interferes with the right to
assign work. It does not restate, or refer to, 5 C.F.R. 335.104 /12/
or state that determination re eligibility for promotion shall conform
with governing regulations. Thus, the prerequisite that a grant of this
authority will only be made to attorneys who are rated at least fully
successful will not preclude the finding of interference. The proposals
under D (7), (8) and (9) are also a direct interference with
management's right to assign work. Once again the Agency is directed to
review a specified number of an attorney's cases (10) upon a denial of
full authority. Further, the Agency is required to review cases within
a certain time frame, and to make retroactive any grant of this
authority at a promotion to GS-13. These proposals infringe upon
management's rights under section 7106 of the Statute, and are
nonnegotiable. See POPA, supra.
In respect to those proposals found to be nonnegotiable based on a
direct interference with Respondent's right to assign work, the record
does not contain sufficient evidence to warrant finding they are
appropriate arrangements. Record facts do not show the adverse effects
upon employees as a result of management's actions and how the proposals
by the Union are intended to address or compensate for the actual or
anticipated effects of the exercise of management's rights. See Kansas
Army National Guard, supra.
It is also contended that Respondent was obliged to fulfill its
bargaining obligation before implementing the Signatory Authority
Program. I agree. Although Respondent met with the Union and also
amended certain changes of its Program, management did not complete its
negotiations with the Union as to the changes. The Union indicated its
desire to continue negotiations and made proposals in this regard.
Implementation of the Program under these circumstances was violative of
sections 7116(a)(1) and (5) of the Statute. /13/
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that Department of Commerce, U.S. Patent and Trademark
Office, shall:
1. Cease and desist from:
(a) Failing and refusing to negotiate in good faith with the
National Treasury Employees Union, Chapter 245, the exclusive
representative of a unit of its employees, concerning procedures
and appropriate arrangements affected by the change in its
Signatory Authority Procedures.
(b) In any like or related manner interfering with, restraining
or coercing its 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 Federal Service
Labor-Management Relations Statute:
(a) Upon request, negotiate in good faith with the National
Treasury Employees Union, Chapter 245, the exclusive
representative of a unit of its employees, concerning procedures
and appropriate arrangements for employees adversely affected by
the changes in its Signatory Authority Procedures, including the
negotiable proposals made by the National Treasury Employees
Union, Chapter 245.
(b) Post at its facilities where bargaining unit employees
represented by the National Treasury Employees Union, Chapter 245
are located, 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 Commissioner of Patent
and Trademarks, 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 insure
that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the Washington
Regional Office, Federal Labor Relations Authority, 1111 18th
Street, NW, 7th Floor, P.O. Box 33758, Washington, DC 20033-0758,
in writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
Issued, Washington, DC, March 11, 1992
WILLIAM NAIMARK
Administrative Law Judge
(1) The Program is the Respondent's system which governs the
responsibility and authority of Examining Attorneys to sign their
actions with respect to trademark applications. The Program is
described in more detail in the attached Judge's decision.
(2) In its opposition, the Charging Party contends that the
Respondent's exceptions are untimely filed and should not be considered.
We conclude that the exceptions are properly before us.
Further, the Charging Party contends that it is unnecessary to
consider the negotiability of the proposals discussed in the
Respondent's exceptions because the issue of negotiability never became
ripe for consideration. The Charging Party asserts that "(w)hen the
Respondent refused to enter bargaining on any of the proposals -- even
when the Union expressed a willingness to change them -- it simply
failed to meet its obligation to bargain . . . (and thereby) committed
an unfair labor practice." Charging Party's Opposition at 5 (emphasis in
original). Noting that no exceptions were filed to the Judge's
conclusion that the Respondent violated the Statute by implementing
changes in its Program without completing bargaining with the Charging
Party over the impact and implementation of the changes and by
bargaining in bad faith, we agree with the Charging Party's contention
and the Judge's finding that the Respondent committed an unfair labor
practice. However, insofar as the Judge found that Proposals A, B, and
C were negotiable and ordered the Respondent to bargain on the
negotiable proposals submitted by the Charging Party, and the Respondent
has excepted to those determinations, we will address the negotiability
of those proposals. See, for example, U.S. Department of Transportation
and Federal Aviation Administration, 40 FLRA 690, 710-16 (1991),
petition for review granted in part and remanded mem. as to other
matters sub nom. Professional Airways Systems Specialists Division,
District No. 1 -- MEBA/NMU v. FLRA, No. 91-1310 (D.C. Cir. Jun. 22,
1992).
(3) The relevant text of Article 1 is found in the Appendix to this
decision. The Judge did not rule on the negotiability of the Charging
Party's proposals contained in Articles 4 and 5. Neither party excepted
to the Judge's failure to rule on the negotiability of Articles 4 and 5.
Therefore, we will not address the negotiability of these proposals.
(4) Referred to at times as Procedures, Program or Plan.
(5) While only a summarization is set forth by the undersigned, the
complete Program is contained in G.C. Exh. No. 2.
(6) These proposals by the Union are set forth in G.C. Exhibit No.
3.
(7) This amendment by Respondent was made to meet the Union's concern
re the change whereby each of the 13 managers decided whether to grant
authority to the examining attorney in his office.
(8) Note is taken that the Complaint refers to a refusal to negotiate
with the Union over its negotiable impact and implementation proposals.
However, the record supports an allegation that Respondent refused to
bargain over the impact and implementation of the change itself. Record
facts disclose that this was in issue and was addressed by the parties.
Accordingly, since the issue was argued and litigated, I conclude that
the impact and implementation of the change instituted by Respondent
without completing negotiations thereof is in issue. Cf. Internal
Revenue Service, Louisville District, Louisville, Kentucky, 42 FLRA 137,
(footnote 2 at 143).
(9) Section 2424.1, et seq. of the Rules and Regulations.
(10) This proposal would not, in any event, excessively interfere
with management's right to assign work and thus be deemed an appropriate
arrangement under section 7106(b)(3).
(11) This proposal also deals with termination and not with the
granting or denial of partial signatory authority.
(12) 335.104 states:
No employee shall receive a career ladder promotion unless his or her
current rating of record under Part 430 of this chapter is "Fully
Successful" (level 3) or higher. In addition, no employee may receive a
career ladder promotion who has a rating below "Fully Successful" on a
critical element that is also critical to performance at the next higher
grade of the career ladder.
(13) Circumstances may exist wherein a union waives the
implementation of changes by management. The record herein does not
support the conclusion that the Union waived its right to bargain as to
the impact and implementation of the Program.
WE WILL NOT fail and refuse to negotiate in good faith with the
National Treasury Employees Union, Chapter 245, the exclusive
representative of a unit of our employees, concerning procedures and
appropriate arrangements affected by the change in our Signatory
Authority Procedures.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, negotiate in good faith with the National
Treasury Employees Union, Chapter 245, the exclusive representative of a
unit of our employees, concerning procedures and appropriate
arrangements for employees adversely affected by the changes in our
Signatory Authority Procedures, including the negotiable proposals made
by the National Treasury Employees Union, Chapter 245.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Washington
Regional Office, whose address is: 1111 18th Street, NW, 7th Floor, P.
O. Box 33758, Washington, DC 20033-0758, and whose telephone number is:
(202) 653-8500.
45 FLRA 1355
45 FLRA NO 135
U.S. Dept. of Justice, Office of the Inspector General, Washington,
D.C. and U.S. Immigration and Naturalization Service, U.S. border
Patrol, El Paso, Texas and AFGE, AFL-CIO, National Border Patrol
Council, Case No. 6-CA-00527 (Decided September 30, 1992)
7116(a)(1), (5), and (8)
UNFAIR LABOR PRACTICE
The complaint alleged that the Respondents violated section 7116(a)(
1), (5), and (8) of the Statute by failing and refusing to furnish the
Union with information requested under section 7114(b)(4) of the
Statute. The Judge found that Respondent INS violated the Statute by
failing and refusing to request that the appropriate components of the
Department of Justice (DOJ) make available to the Union the requested
information.
The Authority concluded, contrary to the Judge, that Respondent INS
did not violate section 7115(a)(1), (5), and (8) of the Statute because
the requested information is not normally maintained by, or reasonably
available to, Respondent INS.
Case No. 6-CA-00527
U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR, GENERAL,
WASHINGTON, D.C.
U.S. IMMIGRATION AND NATURALIZATION SERVICE, U.S. BORDER PATROL, EL
PASO, TEXAS
(Respondents)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL BORDER
PATROL COUNCIL
(Charging Party/Union)
September 30, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority on exceptions
filed by Respondent Immigration and Naturalization Service (INS) to the
attached decision of the Administrative Law Judge. The General Counsel
filed an opposition to the Respondent's exceptions. The Respondent filed
a motion to strike certain portions of the General Counsel's opposition
and the General Counsel filed a response to the Respondent's motion.
/1/
The complaint alleges that the Respondents violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to furnish the Union with
information requested under section 7114(b)(4) of the Statute. The
Judge found that Respondent INS violated the Statute by failing and
refusing to request that the appropriate components of the Department of
Justice (DOJ) make available to the Union the requested information.
The Judge dismissed the complaint against Respondent Office of Inspector
General (OIG). /2/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed. We affirm the rulings. For the reasons which follow, we
conclude, contrary to the Judge, that Respondent INS did not violate
section 7115(a)(1), (5), and (8) of the Statute.
The facts, which are fully set forth in the Judge's decision, are
summarized here.
In December 1989, Robert J. Marren, a Field Service Coordinator for
the Union, requested Respondent INS to furnish him with: (1) a copy of
an investigative file concerning his allegations that he had been
assaulted by a coworker; (2) copies of other investigative files
involving incidents of agency employees assaulting other agency
employees during the past two years; and (3) copies of investigative
files concerning allegations Marren had made against three management
officials. In January 1990, Marren requested Respondent INS to furnish
a copy of an additional investigative file pertaining to allegations
made by another Union officer against a management official.
Respondent INS advised Marren that his requests for information had
been forwarded to OIG. On February 8, 1990, OIG informed Marren that it
had received his requests for information under the Freedom of
Information Act and intended to respond to the request as quickly as
possible. There was no further communication from OIG or Respondent INS
and no information was provided to the Union.
The Judge found that the requested information was in the custody of
Respondent OIG and the Office of Professional Responsibility (OPR). The
Judge found that where allegations such as those involved in the
requested documents were investigated and were not substantiated, "no
information" about the investigation was "made available to INS or
anybody else." Judge's Decision at 13. However, the Judge found that
when allegations were substantiated, "the investigators' (r)eport,
sometimes with attachments, is furnished routinely to INS." Id.
The Judge found that none of the requested files involved
substantiated allegations. Nevertheless, the Judge concluded that the
documents were normally maintained by, or reasonably available to,
Respondent INS because "INS could effectively request OPR or OIG . . .
to furnish the documents covered by the request(.)" Id. With respect to
documents concerning unsubstantiated allegations, the Judge stated that
although testimony indicated that "they are never made available under
any circumstances, no law or regulation (was) proferred as the reason
for such a stance." Id. at 14.
The Judge also concluded that the requested information was necessary
for the Union to determine whether there was "a double standard as
between union officials and others in misconduct
investigations/discipline." Id. at 13. Finally, the Judge determined
that the requested information did not constitute guidance, advice, or
counsel relating to collective bargaining and was not barred from
disclosure by law because it could be sanitized to protect the identity
of complainants and witnesses.
Based on the foregoing, the Judge found that Respondent INS failed to
comply with section 7114(b)(4) of the Statute by "failing and refusing
to request that the appropriate DOJ components, i.e. OIG and OPR make
available to the Union the data it requested." Id. at 14 (footnote
omitted).
Respondent INS argues, among other things, that the Judge erred in
finding that "(it) violated the Statute by not requesting the
appropriate DOJ component to supply the requested data." Exceptions at
17 (emphasis omitted). Respondent INS contends that the Judge's
conclusion is inconsistent with the Judge's factual finding that "INS
did, in fact, forward the request to OIG on January 12, 1990(.)" Id. at
18 (emphasis omitted). Respondent INS also argues that a violation of
the statute based on a failure to request that the information be made
available was not alleged in the charge or the complaint and was not
litigated at the hearing. Therefore, Respondent INS contends that the
Judge's finding must be set aside.
The General Counsel contends that the Judge's finding that Respondent
INS violated the Statute is supported by the evidence. The General
Counsel argues that Respondent INS "failed and refused to take the
necessary steps to obtain the data for the Union, i.e. request its
co-components . . . to make it available to the Union." Opposition at 3.
According to the General Counsel, the fact that Respondent OIG treated
the request as a Freedom of Information Act request "shows that INS
failed to communicate the nature of the request and the obligations the
DOJ component had with respect to its response." Id. at 3-4 (footnote
omitted).
We disagree with the Judge's conclusion that Respondent INS committed
an unfair labor practice by failing to comply with section 7114(b)(4) of
the Statute.
First we conclude that the requested information was not normally
maintained by, or reasonably available to, Respondent INS. In
determining whether information is "normally maintained" by an agency
the Authority examines whether the information is within the control of
the agency. The physical location of requested information is not
relevant, provided the information is subject to the agency's control or
can be retrieved and provided to the agency at its request. See U. S.
Department of Transportation, Federal Aviation Administration, National
Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA
191, 197 (1991).
In this case, there is no question that Respondent INS does not
control access to OIG files. Moreover, there also is no question that
the requested information involved unsubstantiated allegations and that
OIG files involving such allegations are not available to Respondent
"INS or anybody else." Judge Decision at 13. In view of these
undisputed findings, we conclude that the requested information is not
normally maintained by, or reasonably available to, Respondent INS. In
this regard, we reject as unsupported the Judge's apparent finding that,
even though Respondent INS did not have control over or access to the
requested information, it could be found to be within the Respondent's
control because the Respondent failed to cite a law or regulation
prohibiting such control or access.
Second, Respondent INS referred the Union's information request to
the OIG for disposition and sent a letter to Marren notifying him of the
referral. In particular, the letter notified Marren that "(t)he
custodian of (the requested information) remains the Office of the
Inspector General." G.C. Exh. 8. In our view, by notifying Marren that
OIG was in custody of the requested information, Respondent INS
effectively informed Marren that it was not in possession of the
information. Compare Social Security Administration, Baltimore,
Maryland and Social Security Administration, Area II, Boston Region,
Boston, Massachusetts, 39 FLRA 650, 656 (1991) (respondent violated the
Statute by failing to inform union that it did not maintain requested
information).
As the requested information is not normally maintained by, or
reasonably available to, Respondent INS, we find that the Respondent did
not violate the Statute by failing to furnish the Union with the
requested information. Moreover, in view of the Respondent's actions in
forwarding the Union's request to OIG and so informing the Union, as
well as the fact that Respondent INS had no control over the information
and no effective means of gaining access to it, we reject the Judge's
conclusion that Respondent INS violated the Statute by failing to
request OIG to provide the Union the requested information.
Accordingly, without addressing the other arguments raised by Respondent
INS, we will dismiss the complaint.
The complaint is dismissed.
Case No. 6-CA-00527
UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF INSPECTOR GENERAL,
WASHINGTON, D.C.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES
BORDER PATROL, EL PASO, TEXAS
Respondents
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL BORDER
PATROL COUNCIL
Charging Party
Scott David Cooper, Esq., For Respondents
Joseph Swerdzewski, Esq., Julie Garnett Griffin, Esq., For the
General Counsel
Robert J. Marren, For the Charging Party
Before: JOHN H. FENTON, Chief Administrative Law Judge
Respondents OIG and INS are charged with violations of Section 7116(
a)(1), (5) and (8) by reason of their failure to provide the Union with
certain information. Respondents deny the allegations and assert that
the complaint against OIG is barred by Section 7118(a)(4)(A), i.e. that
the amendment of the Complaint to embrace OIG had occurred too late.
The hearing was held in El Paso, Texas. The Respondents, Charging
Party, and the General Counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. Based on the
entire record, I make the following findings of fact, conclusions of
law, and recommendations.
Respondent OIG having interposed the defense that Section 7118(a)(
4)(A) precludes prosecution of it for these alleged violations, it is
necessary to set forth the procedural history with some care.
Robert J. Marren, Field Services Coordinator for the National Border
Patrol Council, wrote the Associate Regional Commissioner, Management,
Immigration and Naturalization Service (INS) on December 18, 1989. He
requested, pursuant to Section 7114(b)(4) that he be furnished with:
(1) a copy of the investigative file "compiled by the agency"
in response to his allegations that he had been assaulted by
fellow Border Patrol Agent Lucero;
(2) copies of all other investigative files "on incidences of
agency employees assaulting other agency employees during the last
two years;
(3) copies of investigative files covering allegations he had
made against "Messrs. Martinez, Roberson and Williams."
Marren supplemented this request with another, dated January 8, 1990,
requesting a copy of the investigative file in a case flowing from
allegations against Mr. Williams made by the Regional Vice President of
the INS Service Council, and concerning the former's investigation of
another Union official. In essence, Marren indicated that management
officials and investigators had made misstatements in connection with
official investigations, and that a different standard was being applied
to Union officials than was the case with others. He sought such
information, he said, "to determine whether or not sufficient evidence
exists to serve as the foundation for filing a grievance over this
perception."
At the hearing Marren elaborated upon his need for the requested
Lucero incident information. He needed, he said, to know who the
witnesses were and what questions were asked of them and thus to
determine whether the investigator asked the right questions. As to his
request for "all other investigative files" concerning assaults, he
indicated it was intended, as to scope, to be confined to the Southern
Region of INS. Likewise, names would be required in connection with
this request in order to check the adequacy of the investigations by
"going to the people and finding out what happened if it wasn't clear
from the report." Finally, it is to be noted that the last request
concerns another bargaining unit within INS.
Associate Regional Commissioner Nelson of INS responded to Marren in
an undated letter bearing the stamp "received 1/12/90", stating that his
"request for data pursuant to 5 USC 7114(b)(4) concerning matters
investigated by the Office of Inspector General" had been forwarded to
that Office, the "custodian" of such records. On January 31, Ms.
Nelson again wrote Marren, responding to a letter of January 8 "wherein
you state that you have not received a reply to your letter of December
18," and forwarding a copy of her initial response. There is no
evidence concerning receipt of, or any response to, the letter of
January 8 described.
On February 8, 1990, Laurie Dubin Leone, Attorney-Advisor, Office of
the General Counsel, OIG, Washington, DC, wrote Marren. She noted
receipt of his (undated) request for information under the Freedom of
Information Act, noted the impact of the Privacy Act and advised him of
the fee schedule as well as her intention to answer "as quickly as
possible".
This reply, unclear as to which of Marren's letters it answered, was
the only response from OIG.
An unfair labor practice charge was filed by Marren on March 19,
1990, alleging that INS violated this statute by refusing to provide the
above-described information, needed "in connection with an investigation
into management complicity in and countenance of misconduct committed
against Union officials." Acting Regional Commissioner Nelson and Laurie
Leone, Attorney-Advisor, Office of the General Counsel, OIG/DOJ ("as an
agent of INS") were named in the body of the charge as having unlawfully
withheld the information but the concluding paragraph said that the
conduct set forth above described violations of Section 7102 by INS.
While the charge named, as the charged activity or agency DOJ, INS, it
was served only on INS, i.e. on the Associate Commissioner, Management,
INS at 425 Eye St., NW, Washington, DC and to the same title in Dallas,
Texas.
Complaint issued on July 20, 1990 against INS, United States Border
Patrol, El Paso, Texas, and was served on an INS Labor Relations
Specialist in Dallas. It was alleged and admitted that Laurie Leone of
OIG Washington was a supervisor and management official. INS denied
that the requested documents were maintained in the normal course of
business, were reasonably available, or were necessary for a full and
proper discussion, understanding and negotiation of subjects within the
scope of bargaining. It asserted such information is protected by the
Privacy Act, and is in any event not in the possession of INS. The
Answer also affirmatively averred that OIG, a separate entity within DOJ
would not release records to INS in response to Marren's request, nor
would it have authorized release of such records by INS had they been in
its possession. It followed, said the Answer, that any failure by INS
to produce records unavailable to it could not be an unfair labor
practice. It provided the name and address of OIG to which, it said,
any future requests should be addressed.
On November 29, (six days before the hearing), the Complaint was
amended to add OIG as a Respondent. On the day before Respondent INS
had served a copy of its Amended Answer to the original Complaint. It
denied that Laurie Leone of OIG was a supervisor or a management
official and denied that she was at material times acting on behalf of
Respondent INS. On December 5, the day of the hearing, OIG entered its
Answer to the Amended Complaint. It denied that any charge had been
filed against it, denied that Laurie Leone was at any material time
acting on behalf of INS, denied that Leone was a supervisor/management
official, denied, oddly, that either INS or OIG had refused to supply
the requested information, and denied such information was normally
maintained, reasonably available or necessary.
On November 20, 1990 subpoenas were issued to Ruth Anne Myers, Acting
Regional Commissioner, INS, Dallas, Guilberto Lobato, Regional Inspector
General, OIG/DOJ in El Paso, and Abel Salazar, Supervisory Border Patrol
Agent, INS, El Paso. The first required production at the hearing of
the OIG Report and investigative file concerning the assault/misconduct
allegation made by Marren against Lucero regarding the October 8
incident when the two had disputed possession of a letter posted on the
bulletin board. /3/ The other two subpoenas asked for the same
material, plus the appointment letter issued to the investigating agent
(Salazar), and all documents concerning that investigation, including
all relevant regulations or other authority concerning the agent's role
as an investigator for OIG and the requirements and procedures governing
INS personnel in investigations conducted for OIG, as well as documents
showing what "happened with the complaint/allegation" made by Marren to
OIG after it was made. At hearing a subpoena was also served upon David
Bobzien, Assistant Counsel, Office of Professional Responsibility, DOJ,
for the investigative file concerning the Marren-Lucero incident.
None of the subpoenaed materials was produced. I rejected an offer
to make them available for in camera inspection on the ground that the
essential teaching of Weather Service, 30 FLRA 127, was that the better
practice is to order their production subject to a protective order. I
did so, refusing to quash, and Respondents' refused to produce for a
variety of reasons to be explored later.
The investigation which is the subject of these subpoenas was
conducted by Abel Salazar, a Supervisory Border Patrol Agent. He is an
employee of INS, but is from time to time assigned to investigate
matters either for OIG or OPR, depending upon the nature of the case, as
a "collateral" agent. The 1988 amendments to the Inspector General Act
(5 U.S.C. Appendix 3) created an IG for DOJ. In the original Act of
1978, (5 U.S.C. App. 3, Section 3(a)), Congress provided that
Each Inspector General shall report to and be under the general
supervision of the head of the establishment involved or, to the
extent such authority is delegated, the officer next in rank below
such head, but shall not report to, or be subject to supervision
by, any other officer of such establishment. Neither the head of
the establishment nor the officer next in rank below such head
shall prevent or prohibit the Inspector General from initiating,
carrying out, or completing any audit or investigation, or from
issuing any subpoena during the course of any audit or
investigation. (Underscoring provided.)
The 1988 amendments specifically provide that the DOJ OIG "shall be
under the authority, direction and control of the Attorney General with
respect to . . . investigations . . . which require access to sensitive
information . . .". Thus the Attorney General may prohibit or interfere
with an IG investigation, but if he does so he must provide the IG with
a written explanation of his reasons therefor, and the latter must
promptly transmit same to the relevant Committees of the Senate and the
House of Representatives. The IG is, in turn, instructed to refer to
Counsel, Office of Professional Responsibility, for investigation,
information or allegations relating to misconduct or violations of law,
regulation or order by any DOJ employee in an attorney, criminal
investigative, or law enforcement position. (See text of 5 U.S.C. App.
3 Section 8D, attached as Appendix). Section 9( I) of 5 U.S.C. App. 3
transferred to OIG/DOJ the functions, inter alia, of OPR/INS. /4/ That
law provided for transfer of personnel, records, etc., to the OIG. It
also provided that the IG shall not disclose nonconsensually the
identity of an employee who makes a complaint or provides information,
unless he "determines such disclosure is unavoidable during the course
of the investigation." (5 U.S.C. App. 3, Section 7).
On April 14, 1989 OPR and OIG entered into a Memorandum of Agreement
Regarding Conduct of Investigations. Recognizing that the IG was
directed to refer all allegations of misconduct involving attorneys,
criminal investigators and law enforcement personnel to OPR, "for timely
investigation in accordance with the Attorney General's expressed
intent", the Agreement provided, in lieu of contemplated transfers or
details, that the OIG "will provide appropriate personnel . . . to the
former internal investigative offices of the components to perform those
investigations falling within the purview" of OPR. Such investigations
"now utilizing the staff of (OIG) will be conducted under the direction
and control of the Counsel, (OPR)". Any conflicts between the
organizations were to be resolved by the Attorney General.
OPR/DOJ is described in 28 CFR Section 0.39 (April 24, 1980). It is
headed by a Counsel appointed by the Attorney General, and subject to
the latter's "general supervision and direction," as well as, whenever
appropriate, that of the Deputy Attorney General, the Associate Attorney
General or the Solicitor General. Its right to investigate any
information or complaint concerning misconduct, including mismanagement,
gross waste of funds, abuse of authority or a substantial danger to
public health and safety, is specifically said not to "preempt the
primary responsibility of internal inspection units of the Department to
receive such information and to conduct investigations." It has the same
obligations respecting the confidentiality of complainants or informants
as those of OIG.
Robert Bobzien, an Assistant Counsel of OPR, testified that OPR
supervises and controls agents of OIG investigating work within its
jurisdiction, and that it can and has taken investigations from OIG
agents. He said OPR directly conducts all investigations involving
attorneys. He further said OPR is a creature of departmental
regulations and an office directly under the Attorney General which is
not "governed" by the IG statute. It maintains its own files,
notwithstanding that they are often "stored" by OIG, /5/ and it does not
-- never has -- released its investigative files, not even to OIG. He
said he cannot imagine the circumstances in which he would ever release
a file. He distinguished such a release from providing "reports" to
client agencies within DOJ such as INS, Bureau of Prisons or the
Marshall's Service, for use in supporting disciplinary actions. Such
reports, he said (which sometimes contain attachments), are created in
such a way that agency management can review them in order to make a
determination concerning any action or discipline, or for use in
defending the discipline imposed in MSPB or other proceedings. Those
attachments relevant for purposes of imposing discipline are released to
others, if in OPR's judgment the individual under investigation is
entitled to them under MSPB or other law, including labor laws.
Nevertheless, the entire file is never released, out of concern for the
confidentiality of both witnesses and investigative practices and
techniques, and "executive privilege", or the right to keep the
deliberative process secret so as to avoid chilling the candor of those
who, ultimately, advise the Attorney General about such matters.
Impacting also, of course, is the Privacy Act.
As noted, Marren's allegations against Lucero were investigated by
Supervisory Border Patrol Agent Salazar, operating as a collateral
agent, assigned to such duty, he says, by OIG, although the assignment
originated with OPR. The forms he receives assigning an investigation
are stamped "OPR Coordinator". He turns the completed file over to the
OPR Sector Coordinator in El Paso. In his investigations Salazar
informs interviewees that he is conducting an OPR investigation under
the authority of the Regional Commissioner. He further testified that
the INS form used to require such testimony (GC Exh. 11(b)), which
contains at the bottom, boxes to be checked opposite the words Office of
Professional Responsibility and Office of the Regional Commissioner,
indicate in the latter case the Regional Commissioner of OIG. /6/ The
form thus clearly suggests, since it was addressed to Marren, a law
enforcement officer, that the investigation was being conducted for INS
rather than OPR. The suggestion is strongly reinforced by the fact
that, until the year before the form was used, there existed within INS
an Office of Professional Responsibility. Thus is the impression
conveyed that OPR remains a part of INS, and that records sought would
be in the hands of INS. Salazar said that, while serving as a
collateral, INS cannot interfere with his investigation and cannot get
his file materials. He further stated that he assures witnesses that
their statements will be released to OIG only.
Guilberto Lobato is the RIG, or Regional Inspector General for the
Southern Region of OIG/DOJ. Before that, he served as the Regional
Director, OPR/INS. He gave the same description of the relationship
between INS, OIG and OPR. Thus, under the MOU, OIG does a great deal of
the work for OPR (i.e. investigations of law enforcement officers).
When non-criminal allegations are received by him, he classifies them as
Category 1 (serious administrative misconduct) or Category II, less
serious in nature. He also determines whether they are OIG or OPR
responsibilities. A Category I case is then sent to the Southern
Regional Commissioner in Dallas who forwards it to the Coordinator
"located in" the Southern Region, INS, Dallas, with Lobato's covering
letter requesting assignment of a specially trained INS person as a
collateral officer to conduct the investigation as his agent, i.e. as an
agent of OPR or OIG. INS has no control over the assignment. When the
investigation is completed it is sent back to Lobato through the
Coordinator for review. If it is deemed completed, Lobato determines
whether the allegations are substantiated or unsubstantiated and whether
the cases should be closed or remain open. No INS agent, including the
Regional Commissioner can interfere, or see the file. If Lobato
determines the allegations were unsubstantiated the case is closed and
the file stored in a safe. If it is an OPR matter the file is the
"property" of OPR. If the allegations are substantiated the case is
forwarded to OIG headquarters in Washington which routes a "Report" to
the Commissioner of INS, who in turn forwards it to the Regional
Commissioner, INS, Dallas, who in turn sends it to the deciding
official, the INS supervisor or manager who must decide whether to
propose disciplinary action against the employee. Neither OIG nor OPR
is involved in the process of determining whether to impose discipline.
When Lobato determines that a case should be closed for lack of
substantiation, nobody except the collateral, the Coordinator and he
will have seen it or be allowed to see it. The Report which is
forwarded to the relevant agency in a substantiated case contains
exhibits. What governs their number or identity is not terribly clear;
apparently it is relevance to any discipline to be considered. Those
agency officials charged with administration of discipline and any
proceedings in the aftermath of its proposal cannot get the file from
him. Should he receive a request for a file, Lobato forwards it to the
General Counsel of OIG in Washington for a decision, or in the case of
an OPR file, for referral to OPR. He, like Salazar of INS, handles OPR
investigations, although he is an OIG employee, and "stores" OPR's
records separate from those of OIG and under the supervision of OPR. He
does not, it is claimed, "maintain in the normal course" the records of
OPR. Rather he is a "custodian" of those not forwarded to headquarters.
Lobato did not produce the Lucero files under subpoena because, he
said, he submitted them to Washington on January 17, 1990, after
receiving what he considered a FOIA request for them.
Laurie Leone, an Attorney-Advisor in the Office of the General
Counsel, OIG, handled at least one, if not both, of Marren's information
requests, responding to him on the assumption it was a FOIA request.
She testified that Section 7 of the IG Act prohibits disclosure of the
identities of complainants and witnesses, unless it is unavoidable for
purposes of an effective investigation. She further said Section 5
contains a provision incorporating the Privacy Act, construed by OIG not
only to prohibit release of such files, but even confirming or denying
their existence. OIG cannot, she said, release OPR files in its
possession, nor would it release one of its own files to a client
agency. If a client had a demonstrated need (i.e. use in connection
with discipline) it would get a Report plus "related exhibits"; in no
other circumstances would such information be released. Thus a file
closed as concerning unsubstantiated allegations, as in the instant
case, would not be released.
The Procedural Issue: There is the question whether OIG can be found
to have independently violated Section 7116(A)(1) and (8) by interfering
with the collective bargaining relationship between INS and NBPC, given
that INS was the only agency charged and served with either the charge
or original complaint, although both documents refer to OIG
Attorney-Advisor Leone as having acted on behalf of INS.
Although couched as a Section 7118(a)(4)(A) defense, i.e. that the
Complaint amendment is barred "because there was no underlying, timely,
ULP charge filed by the Union in which it alleged that OIG . . .
refused to supply. . . .", the defense appears in analysis to be that
the charge, which was timely as respects the alleged violation, will not
support a complaint against the unnamed OIG /7/ As no amended charge was
ever filed, the question of timeliness does not arise. The question is
instead the scope of the charge: may it be said to properly encompass
OIG, solely on the ground an OIG employee was therein named as being an
agent of INS?
It is not entirely clear to me why a charge filed against one
component of an agency does not serve to bind others involved in the
alleged infraction, especially those up a chain of command. There is,
however, a dearth of precedent, presumably because appropriate
amendments are made in time.
Scott Air Force Base, 44 FLRA No. 11, may provide the answer. There
a timely charge was filed alleging that the Base violated the law by
issuing a furlough letter without providing the union prior notice and
an opportunity to bargain. Just three days short of six months after
that event an amended charge was filed adding Headquarters, USAF as a
charged party. The complaint alleged that Headquarters violated Section
7116(a)(1) and (5) when:
(o)n or about September 14, 1990, HQ USAF directed Scott AFB to
issue Notices of Proposed Furlough to employees no later than
September 18, 1990.
September 14 was one day beyond the six-month reach of the amended
charge. The Authority concluded that HQ USAF "may properly be charged
with violating the Statute on September 18, 1990 when Respondent Scott
AFB carried out Respondent HQ USAF's directive to issue the notices.
Therefore . . . the March 15 . . . charge against . . . HQ USAF was
timely filed under section 7118(a)(4)(A) . . . ". Thus the Authority
applied the limitation period to determine whether prosecution of HQ
USAF was precluded, and its determination that the directive of
September 14 caused a violation on September 18 brought HQ's conduct
within reach of the amended charge. While this approach does not remove
the possibility that the Authority might have found the original charge
to suffice had there been no unlawful conduct within reach of the
amended charge, it implies that the Authority will not find a charge
against a subordinate to encompass a higher level's conduct, even where
that conduct compels the subordinate to violate the law.
Here an even stronger case can be made for a finding that OIG is not
reached by a charge against INS, as it is not located up the latter's
chain of command. OIG is, in addition, a highly independent component
of DOJ, and is in many respects as much a resident presence of the
Congress as it is a part of DOJ. That is to say, while the Attorney
General has somewhat more authority over his OIG, that office has
enormous independence with respect to its investigations. Nor can it be
argued, as might have been the case with an attempt to amend in OPR,
that the real "culprit" was hidden from view, and its role never
disclosed. Here the response to the request referred the Charging Party
to OIG. It would appear, in such circumstances, that the validity of
the charge, as one supporting a complaint allegation against OIG, hangs
on the tenuous thread of the mention of that organization's employee as
one who withheld information "as an agent" of INS. That might have been
a beginning, but it was not served on OIG, and the appearance of the
latter's noninvolvement was fortified by a highly similar formal
complaint which again failed to name OIG as a "charged" party and was
not served upon it. Even if OIG was aware of a real potential for its
envelopment in such litigation, the Complaint issued four months after
the charge and five months after the incident directly involving OIG,
left it out, and the limitation period of 7118( a)(4)(A) for any
amendment, should one be deemed necessary, expired a few weeks later.
Thus a new or amended charge against OIG would have been time-barred by
August 10, almost four months before the attempt to amend the complaint.
In such circumstances I conclude that the charge is not a proper
predicate or valid basis for the Amended Complaint.
The Merits
Without a viable charge against OIG or any at all against OPR, the
apparent keeper of most of the records sought, we are faced with the
question of what to do with INS. Neither of the Offices which compile
and house such records as the Union here seeks can directly be ordered
to do anything.
Nevertheless, Section 7114(b)(4) provides that an agency shall, upon
request, furnish an exclusive representative, to the extent not
prohibited by law, data which is normally maintained in the regular
course of business; which is reasonably available and necessary for
full discussion, understanding and negotiation of subjects within the
scope of collective bargaining; and which does not constitute guidance,
advice, counsel or training for management officials or supervisors
relating to collective bargaining.
The documents sought of INS are, so far as we can tell from this
record, in the custody of OIG and OPR. Those investigations involving
law enforcement officers are, by regulation, within the province of OPR,
although in the physical custody of OIG. The generalized request for
all agency files concerning alleged assaults upon agency employees by
agency employees would be in the custody of OIG where neither attorneys
nor law enforcement authorities are involved. To the extent any such
investigations found merit to allegations of misconduct, it is clear
that the investigators' Report, sometimes with attachments, is furnished
routinely to INS. Where allegations are determined to be
unsubstantiated, the unrefuted (and, in the circumstances, unrefutable)
testimony is that the files are simply closed, and no information is
made available to INS or anybody else.
The conclusion is inescapable that INS can get reports of
investigations, with what may be deemed "relevant" attachments, in all
investigations which gave rise to the possibility of discipline. As INS
could effectively request OPR or OIG, each a component of the same
parent agency, DOJ, to furnish the documents covered by the request, it
follows that they are within the control of the agency and are normally
maintained within the meaning of Section 7114(b)(4). U.S. Department of
Commerce, NOAA, NWS, 38 FLRA 120, 128-129. It cannot be seriously
contended that such information is not reasonably available as, again,
it is readily available upon request.
Such information is necessary to a union which professes it has
reason to grieve, or invoke other forms of redress, concerning the
application of a double standard as between union officials and others
in misconduct investigations/discipline. U.S. Department of Labor, 39
FLRA 531, 537. Such information would enable the union to compare those
cases involving union officers with those that do not.
There is no evidence that the information sought constitutes
guidance, advice or counsel relating to collective bargaining (NLRB, 38
FLRA 506), nor is there any indication that the Privacy Act is a
barrier, as the material can be sanitized so as to protect the identity
of complainants and witnesses.
The same analysis would appear to apply to the files, although with
several caveats. It is assumed that OPR and OIG are entitled to protect
investigative techniques, as well as sources or other matters which may
have no relevancy to Marren's purposes. Lacking the files at issue, one
is at a loss with respect to what may be withheld. Cf. 5 U. S.C.
Section 552(b)(7). Similar considerations apply to cases closed for
lack of substantiation. While the testimony is that they are never made
available under any circumstances, no law or regulation is proffered as
the reason for such a stance. Presumably they are simply of no value to
client agencies where no misconduct has occurred. Yet they have the
same usefulness to the Union.
One cannot escape concern about the real possibility that the request
here is a gigantic and very burdensome fishing expedition. Marren
believes his complaints got short shrift, but even two swallows do not
necessarily make a Spring. Nevertheless, there appears to be no
impediment to his (or the Union's) entitlement to such materials. Only
Respondent is in a position, at this juncture, to have any idea how much
disclosure would meet his needs.
Having failed to make the files subpoenaed available, Respondent has
foreclosed any examination of their contents, or any informed effort to
determine what it might be privileged to withhold. Thus any
determination whether a given file has been oversanitized must be
resolved in compliance proceedings.
INS failed to comply with Section 7114(b)(4), and thereby violated
Section 7116(a)(1), (5) and (8) on January 12, 1990, by failing and
refusing to request that the appropriate DOJ components, i.e. OIG and
OPR make available to the Union the data it requested. /8/
Based on the foregoing, I recommend that the Authority issue the
following Order:
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that the United States Immigration and Naturalization
Service, United States Border Patrol, El Paso, Texas, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the American Federation of
Government Employees, AFL-CIO, National Border Patrol Council the
data it requested, pursuant to 5 U.S.C. 7114(b)(4), on December
18, 1989 and January 8, 1990, consisting of the appropriately
sanitized files of investigations into misconduct allegations made
by the Office of Inspector General and/or Office of Professional
Responsibility.
(b) In any like or related manner, failing or refusing to
furnish to the Union, upon request, data which is normally
maintained in the regular course of business, which is reasonably
available and necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining, which does not constitute guidance, advice,
counsel, or training provided for management officials or
supervisors relating to collective bargaining, and which is not
prohibited by law from release.
(c) In any like or related manner interfering with, restraining
or coercing its 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 Federal Service
Labor-Management Relations Statute:
(a) Furnish the Union with the data it requested, pursuant to
Section 7114(b)(4), on December 18, 1989 and January 8, 1990,
consisting of the appropriately sanitized files of investigations
into misconduct allegations made by the Office of Inspector
General and/or Office of Professional Responsibility.
(b) Otherwise furnish to the Union, upon request, data which is
normally maintained in the regular course of business, which is
reasonably available and necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining, which does not constitute guidance, advice,
counsel, or training provided for management officials or
supervisors relating to collective bargaining, and which is not
prohibited by law from release.
(c) 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 Regional
Commissioner, Southern Regional Office, INS 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 insure that such Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the Dallas Regional
Office, Federal Labor Relations Authority, Dallas Regional Office,
525 Griffin Street, Suite 926, LB-107, Dallas TX 75202, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
All of the allegations against the United States Department of
Justice, Office of Inspector General, Washington, DC are dismissed.
Issued, Washington, DC, April 1, 1992
JOHN H. FENTON
Chief Administrative Law Judge
(1) We conclude that Respondent's motion, claiming that portions of
the General Counsel's opposition fail to conform to the Authority's
Rules and Regulations, constitutes a response to the opposition. As the
Authority's regulations do not provide for the filing of such response,
neither it, nor the General Counsel's reply to it, has been considered.
(2) The Judge dismissed Respondent OIG as a party to the case because
it was not charged and served with the charge or complaint. As no
exceptions were filed to the dismissal, we will also dismiss this
complaint as to Respondent OIG.
(3) The letter, from INS Regional Commissioner Martin to Lucero,
indicated that Marren's charges had not been substantiated by the
investigation. It was apparently the first communication Marren had
seen regarding disposition of his allegations.
(4) Some considerable confusion in this case, as to who is working
for whom, derives from the fact that there existed, apparently until
April 14, 1989 an organization known as OPR within INS, whose operatives
were subject locally to the Regional Commissioner. Forms reflecting
that fact were used in an investigation in 1990.
(5) OPR files in headquarters are maintained and stored by it. Those
located elsewhere are, he said, kept by OIG because the small OPR office
in Washington does not have the capacity to deal with them all. It is,
he said, a "housekeeping thing". Theoretically, they could all be kept
in Washington, but it serves OPR's purposes to have them segregated for
storage by IG offices around the country.
(6) There is in fact a RIG, or Regional Inspector General, rather
than a Regional Commissioner, OIG. The only Regional Commissioner
clearly existing on this record is an official of INS.
(7) Section 7118(a)(4)(A) says that "(No) complaint shall be issued
based on any alleged unfair labor practice which occurred more than 6
months before the filing of the charge with the Authority." Were this
case one properly viewed as a contest over application of this "statute
of limitations", such affirmative defense might well be viewed as waived
by failure to assert it until briefs were filed. Cf. McKesson Drug Co.,
257 NLRB 468. In my view it is a jurisdictional issue which could
properly be raised after the hearing.
(8) I have ignored Respondent's Motion to Strike as well as General
Counsel's Response, feeling capable to sift the evidence without such
help.
WE WILL NOT fail and refuse to furnish the American Federation of
Government Employees, AFL-CIO, National Border Patrol Council with data
requested on December 18, 1989 and January 8, 1990, consisting of the
appropriately sanitized files of investigations into allegations of
misconduct which were conducted by the Office of Inspector General and/
or Office of Professional Responsibility.
WE WILL NOT in any like or related manner, fail or refuse to furnish
to the Union, upon request, data which is normally maintained in the
regular course of business, which is reasonable available and necessary
for full and proper discussion, understanding, and negotiation of
subjects within the scope of collective bargaining, which does not
constitute guidance, advice, counsel, or training provided for
management officials or supervisors relating to collective bargaining,
and which is not prohibited by law from release.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the Union with the data requested on December 18,
1989 and January 8, 1990, consisting of the appropriately sanitized
files of investigations into misconduct allegations made by the Office
of Inspector General and/or Office of Professional Responsibility.
WE WILL otherwise furnish to the Union, upon request, data which is
normally maintained in the regular course of business, which is
reasonable available and necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining, which does not constitute guidance, advice,
counsel, or training provided for management officials or supervisors
relating to collective bargaining, and which is not prohibited by law
from release.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Dallas
Regional Office, whose address is: 525 Griffin Street, Suite 926,
LB-107, Dallas TX 75202, and whose telephone number is: (214) 767-4996.
INSPECTOR GENERAL ACT
Section 8D
Historical and Statutory Notes
Effective Date. Section effective 180 days after Oct. 18, 1988, see
section 113 of Pub.L. 100-504, set out as a note under section 5 of this
Act.
Legislative History. For legislative history and purpose of Pub.L.
100-504, see 1988 U.S.Code Cong. and Adm. News, p. 3154.
Section 8D. Special provisions concerning the Department of Justice
(a)(1) Notwithstanding the last two sentences of section 3(a), the
Inspector General shall be under the authority, direction, and control
of the Attorney General with respect to audits or investigations, or the
issuance of subpenas, which require access to sensitive information
concerning --
(A) ongoing civil or criminal investigations or proceedings;
(B) undercover operations;
(C) the identity of confidential sources, including protected
witnesses;
(D) intelligence or counterintelligence matters; or
(E) other matters the disclosure of which would constitute a
serious threat to national security.
(2) With respect to the information described under paragraph (1),
the Attorney General may prohibit the Inspector General from carrying
out or completing any audit or investigation, or from issuing any
subpena, after such Inspector General has decided to initiate, carry
out, or complete such audit or investigation or to issue such subpena,
if the Attorney General determines that such prohibition is necessary to
prevent the disclosure of any information described under paragraph (1)
or to prevent the significant impairment to the national interests of
the United States.
(3) If the Attorney General exercises any power under paragraph (1)
or (2), the Attorney General shall notify the Inspector General in
writing stating the reasons for such exercise. Within 30 days after
receipt of any such notice, the Inspector General shall transmit a copy
of such notice to the Committees on Governmental Affairs and Judiciary
of the Senate and the Committees on Government Operations and Judiciary
of the House of Representatives, and to other appropriate committees or
subcommittees of the Congress.
(b) In carrying out the duties and responsibilities specified in this
Act, the Inspector General of the Department of Justice --
(1) may initiate, conduct and supervise such audits and
investigations on the Department of Justice as the Inspector
General considers appropriate;
(2) shall give particular regard to the activities of the
Counsel, Office of Professional Responsibility of the Department
and the audit, internal investigative, and inspection units
outside the Office of Inspector General with a view toward
avoiding duplication and insuring effective coordination and
cooperation; and
(3) shall refer to the Counsel, Office of Professional
Responsibility of the Department for investigation, information or
allegations relating to the conduct of an officer or employee of
the Department of Justice employed in an attorney, criminal
investigative, or law enforcement position that is or may be a
violation of law, regulation, or order of the Department or any
other applicable standard of conduct, except that no such referral
shall be made if the officer or employee is employed in the Office
of Professional Responsibility of the Department.
(c) Any report required to be transmitted by the Attorney General to
the appropriate committees or subcommittees of the Congress under
section 5(d) shall also be transmitted, within the seven-day period
specified under such section, to the Committees on the Judiciary and
Governmental Affairs of the Senate and the Committees on the Judiciary
and Government Operations of the House of Representatives.
(Added Pub.L. 100-504, Title I, Section 102(f), Oct. 18, 1988, 102
Stat. 2520.)
Historical and Statutory Notes
Effective Date. Section effective 180 days after Oct. 18, 1988, see
section 113 of Pub.L. 100-504, set out as a note under section 5 of this
Act.
Transfer of 20 Investigation Positions Within the Department of
Justice. Section 102(h) of Pub.L. 100-504 provided that: "No later
than 90 days after the date of appointment of the Inspector General of
the Department of Justice, the Inspector General shall designate 20
full-time investigation positions which the Attorney General may
transfer from the Office of Inspector General of the Department of
Justice to the Office of Professional Responsibility of the Department
of Justice for the performance of functions described
45 FLRA 1346
45 FLRA NO 134
NFFE, Local 1482 and U.S. Dept. of Defense, Defense Mapping Agency,
Hydrographic/Topographic Center, Louisville Office, Louisville,
Kentucky, Case No. 0-NG-2029 (Decided September 30, 1992)
7105(a)(2)(E)
5 C.F.R. Section 430.504(d)
5 U.S.C. Section 552
NEGOTIABILITY DETERMINATION
NEGOTIABLE ISSUES
CASH AWARDS
THE PRIVACY ACT (FOIA)
This case concerned the negotiability of two proposals involving cash
awards for outstanding and highly successful performance. The Authority
concluded that Proposals A and B were nonnegotiable. The Authority
found that these proposals were inconsistent with 5 C.F.R. Section
430.504(d). The disputed portion of the last paragraph of Proposal B,
however, was found to be negotiable.
Preliminarily, the Union argued that Article 1-3(c) of the parties'
agreement precluded the application of 5 C.F.R. Section 430.504(d)
because that regulation went into effect after the parties' agreement.
Further, the Union argued that even if 5 C.F.R. Section 430.504(d) was
effective, it conflicted with Article 1-3(e) of the parties' agreement.
The Authority noted that these arguments raised issues concerning the
effect of an existing collective bargaining agreement. The Authority
further noted that under part 2424 of its Regulations, review is limited
to questions of whether a matter proposed for negotiation is
inconsistent with law, rule, or regulation. Thus, the Authority
concluded that the issues raised by the Union should be resolved in
another proceeding.
The Authority noted that section 430.504(d), which is a
Government-wide regulation, required agency officials to review and
approve determinations to grant cash awards as well as the amount of
such awards. The Authority found, based on the Union's statement of
intent, that Proposal A dictated a formula for determining award amounts
and a method for determining which employees would receive cash awards
without permitting the review and approval required by 5 C.F.R. Section
430.504(d). As to Proposal B, the Authority found that the proposal
mandated that awards be granted to all employees with outstanding
ratings and dictated the amount of cash awards for employees with
outstanding and highly successful ratings without regard to the review
and approval mandated by 5 C.F.R. Section 430.504(d). Therefore, the
Authority concluded that Proposals A and B, excluding the last paragraph
of Proposal B, were nonnegotiable under section 7117 of the Statute
because they are inconsistent with 5 C.F.R. Section 430.504(d).
The Authority also concluded that disclosure to the Union of the
written reasons why employees rated highly successful did not receive
cash awards would not constitute a clearly unwarranted invasion of
personal privacy under 5 U.S.C. Section 552(b)(6). Accordingly, the
disputed part of the last paragraph of Proposal B, which requires such
disclosure, was not found inconsistent with the Privacy Act.
Case No. 0-NG-2029
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1482
(Union)
U.S. DEPARTMENT OF DEFENSE, DEFENSE MAPPING AGENCY, HYDROGRAPHIC/
TOPOGRAPHIC CENTER, LOUISVILLE OFFICE, LOUISVILLE, KENTUCKY
(Agency)
September 30, 1992
Before Chairman McKee and Members Talkin and Armendariz.
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 case concerns the
negotiability of two proposals involving cash awards for outstanding and
highly successful performance. /1/
For the following reasons, we conclude that Proposals A and B, except
for the disputed portion of the last paragraph of Proposal B, are
nonnegotiable because they are inconsistent with 5 C.F.R. Section
430.504(d). The disputed portion of the last paragraph of Proposal B is
negotiable.
Performance Awards:
The Employer will follow the procedure in either item A or B.
Once the election is made the procedure (either A. or B.) will be
effective for the duration of the negotiated agreement.
(Proposal A)
A. Seniority in Cash Awards:
The past practice that existed prior to Dec(.) 1990 on the
amount of cash employees receive with outstanding performance
appraisals will remain in effect.
If some, but not all, employees in the office, who have
outstanding performance appraisals are to receive cash awards,
then the most senior employees will receive the cash awards.
Seniority will be determined by the employee(')s service
computation date.
If some, but not all, employees in the office, who have highly
successful performance appraisals are to receive cash awards, then
the most senior employees will receive the cash awards. Seniority
will be determined by the employee(')s service computation date.
(Proposal B)
B. Past Practice and Documentation:
The past practice that existed prior to Dec(.) 1990 on the
granting of cash awards to employees with (an) overall rating of
outstanding will remain in effect. The past practice that existed
proior (sic) to Dec(.) 1990 on the amount of cash employees
receive with outstanding performance appraisals will remain in
effect.
The amount of cash that employees receive with highly
successful ratings, for those employees who receive cash, will be
the amount in section 47-17 of the 1989 negotiated agreement.
If some, but not all, employees who had overall ratings of
highly successful do not receive cash awards, the following
procedure will be followed: The Employer will provide written,
objective, job related reasons for not granting a cash award for
each employee. The written document will be provided to the
employee within 30 calendar days of receiving the rating. The
Employer will maintain a file of these responses and the Union
will have access to the file at any time. The file will be
maintained for one year. The Union will receive copies of the
file upon written request, within 30 calendar days of the request.
(With respect to the last paragraph, only the underscored
portion is in dispute.)
A. Positions of the Parties
The Agency contends that Proposal A and the first two paragraphs of
Proposal B conflict with 5 C.F.R. Section 430.504(d) because they
"preempt()" management's authority to approve or disapprove, and
determine the amount of, performance awards. /2/ Statement of Position
at 6, 8. In addition, the Agency asserts that the disputed portion of
the last paragraph of Proposal B is nonnegotiable because it would
require the Agency "to turn over information protected by the Privacy
Act to the Union . . . ." Id. at 11.
The Union asserts that the Agency may choose to follow either
Proposal A or B for the term of the collective bargaining agreement.
According to the Union, these proposals, except for the disputed portion
of the last paragraph of B, are negotiable procedures under section
7106(b)(2) of the Statute. The Union also argues that, under Article
1-3(c) of the parties' agreement, 5 C.F.R. Section 430.504(d) does not
apply here because that regulation went into effect after the parties'
agreement. /3/ Further, the Union asserts that even if 5 C.F. R.
Section 430.504(d) applied, it would conflict with Article 1-3(e) of the
parties' agreement which, according to the Union, requires the Agency to
follow past practices concerning cash awards. /4/ Alternatively, the
Union argues that 5 C.F.R. Section 430.504(d) constitutes a
"restatement" of management's right to determine its budget under
section 7106(a)(1) of the Statute and that its proposals are intended as
arrangements for employees adversely affected by the exercise of that
management right. Reply Brief at 4.
Finally, the Union contends that the disputed portion of the last
paragraph of Proposal B presents a "7114(b)(4) issue" rather than a
Privacy Act issue. Id. at 7. Specifically, the Union asserts that it
needs a written explanation of the reasons for not granting cash awards
in order to meet its obligation to represent employees effectively. The
Union contends that its need for this information "outweighs" any
employee privacy interest. Id.
B. Analysis and Conclusions
1. Preliminary Issues
The Union argues that Article 1-3(c) of the parties' agreement
precludes the application of 5 C.F.R. Section 430.504(d) because that
regulation went into effect after the parties' agreement. Further, the
Union argues that even if 5 C.F.R. Section 430.504(d) was effective, it
"conflict(s) with" Article 1-3(e) of the parties' agreement. Reply
Brief at 3. These arguments raise issues concerning the effect of an
existing collective bargaining agreement. Under part 2424 of the
Authority's Regulations, our review is limited to questions of whether a
matter proposed for negotiation is inconsistent with law, rule, or
regulation. The issues raised by the Union should be resolved in other
appropriate proceedings. See, for example, National Treasury Employees
Union and U.S. Department of the Treasury, Internal Revenue Service,
Chicago, Illinois, 38 FLRA 1605, 1611 (1991).
2. 5 C.F.R. Section 430.504(d)
Section 430.504(d), which is a Government-wide regulation, requires
agency officials to review and approve determinations to grant cash
awards as well as the amount of such awards. National Association of
Government Employees, Local R1-144 and U.S. Department of the Navy,
Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 47,
51-52 (1991).
The Union asserts that, if the Agency chooses to give awards,
Proposal A requires that "employees with outstanding ratings . . . will
receive cash awards of a minimum of 2.5% of their annual salary." Reply
Brief at 4. According to the Union, Proposal A also requires that
employees with highly successful ratings who receive cash awards will
receive "a minimum of 1% of their salary . . . ." Id. at 6. Where
management is unable to grant cash awards to all employees with
outstanding and highly successful ratings, Proposal A requires that such
awards be granted to the most senior employees. Based on the Union's
statement of intent, which is consistent with the plain wording of
Proposal A, we find that this proposal dictates a formula for
determining award amounts and a method for determining which employees
will receive cash awards without permitting the review and approval
required by 5 C.F.R. Section 430.504(d).
The Union asserts that Proposal B requires the Agency to give cash
awards to "all employees with outstanding ratings" at "a minimum of 2.5%
of their salary." Id. (emphasis added). Proposal B, according to the
Union, does not require that employees with highly successful ratings
receive cash awards. However, when the Agency decides to grant awards
to such employees, Proposal B requires that the amount of the awards be
the amount provided in the parties' 1989 agreement. Based on the
Union's explanation, we conclude that Proposal B mandates that awards be
granted to all employees with outstanding ratings and dictates the
amount of cash awards for employees with outstanding and highly
successful ratings without regard to the review and approval mandated by
5 C.F.R. Section 430.504(d).
Proposals A and B would effectively preempt the authority of the
reviewing official by requiring, in certain circumstances, that
employees receive cash awards and by establishing percentages of salary
as cash awards. Accordingly, we conclude that Proposals A and B,
excluding the last paragraph of Proposal B, are nonnegotiable under
section 7117 of the Statute because they are inconsistent with 5 C.F.R.
Section 430.504(d), a Government-wide regulation. General Services
Administration, National Capital Region and Journeyman Pipefitters and
Apprentices, Local Union No. 602, 42 FLRA 121, 130 (1991). In view of
our conclusion, it is unnecessary to consider the Union's contention
that Proposal A and all but the last paragraph of Proposal B constitute
negotiable procedures and/or appropriate arrangements. For example,
National Association of Government Employees, Federal Union of
Scientists and Engineers, Local R1-144 and U.S. Department of the Navy,
Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 756
(1991); National Association of Government Employees, Local R1-109 and
Veterans Administration, Veterans Administration Medical Center,
Newington, Connecticut, 37 FLRA 448, 456-57 (1990).
3. Privacy Act
If some, but not all, employees rated highly successful receive cash
awards, the disputed portion of the last paragraph of Proposal B would
require the Agency to provide the Union with access at any time to
employee documents containing reasons why individual employees, also
rated highly successful, did not receive cash awards. Although the
Union asserts that certain information about employees could be omitted
from the documents, the Union specifically states that the documents
must include employees' names.
The Privacy Act generally prohibits disclosure of personal
information about Federal employees, absent the employees' written
consent. 5 U.S.C. Section 552a(b). The Privacy Act also provides that
the prohibition against disclosure is not applicable if disclosure of
the information would be required under the Freedom of Information Act
(FOIA). 5 U.S.C. Section 552a(b)(2). However, exemption (b)(6) of the
FOIA provides that information contained in personnel, medical, and
other similar files may be withheld if disclosure of the information
would constitute a "clearly unwarranted invasion of personal privacy(.)"
5 U.S.C. Section 552(b)(6).
In determining whether disclosure of the requested information would
constitute a clearly unwarranted invasion of personal privacy under 5
U.S.C. Section 552(b)(6), the employee's right to privacy must be
balanced against the public interest in having the information
disclosed. For example, National Federation of Federal Employees, Local
858 and U.S. Department of Agriculture, Federal Crop Insurance
Corporation, Kansas City, Missouri, 42 FLRA 1169, 1177 (1991) (Federal
Crop Insurance Corporation). The same balancing test must be applied in
cases involving the review of negotiated provisions as is applied in
resolving disputes resulting from a request for data under section
7114(b)(4) of the Statute. Federal Employees Metal Trades Council and
U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo,
California, 38 FLRA 1410, 1424-25 (1991).
In applying the balancing test, we look to the public interest
embodied in the Statute. Federal Crop Insurance Corporation, 42 FLRA at
1177. The "'public interest'" identified in the Statute is "'the
facilitation of the collective bargaining process . . . .'" Id.
(quoting U.S. Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 37 FLRA 515 (1990), enforcement denied sub
nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991). /5/
Although the Agency argues that these employee documents are
protected by the Privacy Act, it has not identified any particular
employee privacy interest. However, it is reasonable to conclude that
affected employees have such interests in the disputed documents. We
note, in this regard, that although the affected employees have received
highly successful ratings, the Agency's reasons for not giving them cash
awards may contain negative or embarassing comments. Moreover, even if
the Agency's reasons include favorable comments, an employee has a
privacy interest in nondisclosure of such comments. For example,
Ripskis v. Department of Housing and Urban Development, 746 F. 2d 1, 3
(D.C. Cir. 1984). By requiring blanket disclosure of this information
to the Union, the disputed part of Proposal B, the last paragraph,
clearly implicates these privacy interests.
On the other hand, the parties do not dispute the negotiability of
the requirement that the Agency give employees written reasons when
some, but not all, employees who are rated highly successful receive
cash awards. Permitting the Union access to these reasons would further
the collective bargaining process by enabling the Union to monitor the
Agency's compliance with the parties' agreement. In this regard,
disclosure under the disputed part of the proposal would be made to only
the Union and there is no indication in this record that the Union would
disclose the information further. Moreover, the disputed portion of the
last paragraph of Proposal B applies to only a limited group of
employees, those rated highly successful, and only if all employees so
rated do not receive cash awards. On balance, we conclude that the
public interest inherent in the Union's discharge of its obligations
under the Statute outweighs the employees' privacy interests in
preventing disclosure of the information to the Union.
Even if, in the alternative, we apply the public interest test
identified by the Supreme Court in United States Department of Justice
v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772
(1989), which requires that we examine the requested document and its
relationship to the basic purpose of the FOIA "to open agency action to
the light of public scrutiny(,)" we find that the public interest in the
disclosure of the information encompassed by the disputed part of
Proposal B outweighs the effect of the proposal on employees' privacy
interests. Information about the Agency's decisions not to grant cash
awards to certain employees when others have been granted awards
furthers the public interest in promoting the fair and equitable
treatment of Federal employees. Similarly, disclosure of the
information would facilitate the assessment of the Agency's compliance
with its contractual obligations. Finally, disclosure of the
information encompassed by the disputed part of the last paragraph of
Proposal B would assist the public in determining the extent to, and
manner in, which the Agency rewards superior performance. In our view,
these are important public interests, which outweigh the effect of the
proposal on employees' privacy interests. See also U.S. Department of
Treasury, Internal Revenue Service, Helena District, Helena, Montana, 39
FLRA 241, 253 (1991) (disclosing certain standards, objectives, and
performance appraisals of three managers found to further the public
interest in promoting the fair and equitable treatment of Federal
employees, the absence of illegal discrimination, and the application of
merit system principles).
Based on the foregoing, we conclude that disclosure to the Union of
the written reasons why employees rated highly successful did not
receive cash awards would not constitute a clearly unwarranted invasion
of personal privacy under 5 U.S.C. Section 552(b)(6). Accordingly, the
disputed part of the last paragraph of Proposal B, which requires such
disclosure, is not inconsistent with the Privacy Act, 5 U.S.C. Section
552a. As no other basis for finding this part of the proposal
nonnegotiable is argued or apparent, we conclude that it is negotiable.
The Union's petition for review of Proposals A and B, except for the
disputed portion of Proposal B, is dismissed. The Agency must upon
request, or as otherwise agreed to by the parties, bargain concerning
the disputed portion of Proposal B. /6/
(1) The Union filed an unfair labor practice charge asserting that
the Agency violated section 7116(a)(1) and (5) of the Statute by the
manner in which it changed the method for awarding cash performance
awards. In Defense Mapping Agency, Hydrographic/Topographic Center,
Louisville Office, Case No. 4-CA-10615 (1992), an Administrative Law
Judge concluded that the Agency had not engaged in the unfair labor
practice alleged in the complaint. As no exceptions were filed to the
Administrative Law Judge's decision, the decision was adopted by the
Authority.
(2) 5 C.F.R. Section 430.504(d) provides:
(t)he decision to grant a performance award, including the amount
of such award, shall be reviewed and approved by an official of
the agency who is at a higher level than the official who made the
initial decision, unless there is no official at a higher level in
the agency.
(3) The Union refers to Article 1-3(c) which provides, as relevant
here, that:
Government-wide rules and regulations prescribed prior to the
effective date of this Agreement shall take precedence over any
provisions of this Agreement which are in conflict with such
government-wide rules and regulations.
Petition for Review, Enclosure 1.
(4) As relevant here, Article 1-3(e) provides:
(T)his Agreement shall be controlling with regard to matters which
constitute conditions of employment affecting bargaining unit
employees . . . . To the extent that such matters are not
addressed by this Agreement, they shall be subject to established
policies and practices in existence at the time this Agreement
becomes effective.
Petition for Review, Enclosure 1.
(5) Although the First Circuit denied the Authority's petition for
enforcement of Portsmouth Naval Shipyard, other Courts of Appeals have
enforced Authority decisions based on Portsmouth Naval Shipyard: FLRA
v. U.S. Department of the Navy, 966 F.2d 747 (3rd Cir. 1992) (en banc);
FLRA v. U.S. Department of the Navy, Navy Resale and Services Support
Office, Field Support Office, Auburn, Washington, 958 F.2d 1490 (9th
Cir. 1992), petition for rehearing and suggestion for rehearing en banc
pending; FLRA v. U.S. Department of Commerce, National Oceanic and
Atmospheric Administration, National Ocean Service, 954 F.2d 994 (4th
Cir. 1992), petition for rehearing en banc granted. The following
Courts of Appeals have denied enforcement of such decisions: FLRA v.
United States Department of the Navy, Navy Exchange, Naval Training
Station, Naval Hospital, Great Lakes, Illinois, No. 90-3178 (7th Cir.
Sept. 16, 1992); FLRA v. United States Department of Veterans Affairs,
Washington, D.C. and United States Department of Veterans Affairs
Medical Center, Newington, Connecticut, 958 F.2d 503 (2nd Cir. 1992);
FLRA v. Department of the Navy, Naval Resale Activity, Naval Air
Station-Memphis, Millington, Tennessee, 963 F.2d 125 (6th Cir. 1992).
We respectfully adhere to our decision in Portsmouth Naval Shipyard.
(6) In finding the disputed portion of Proposal B to be negotiable,
we make no judgment as to its merits.
45 FLRA 1332
45 FLRA NO 133
Marine Corps Logistics Base, Barstow, California and AFGE, Local
1482, AFL-CIO, Case No. 98-CA-10371 (Decided September 30, 1992)
7116(a)(1) and (5)
7114(a)(2)(A)
UNFAIR LABOR PRACTICE
FORMAL DISCUSSION
FAILURE TO NOTIFY THE UNION
The complaint alleged that the Respondent violated section 7116(a)(
1) and (5) of the Statute by conducting a formal discussion with
bargaining unit employees without notifying the Union and affording it
the opportunity to be represented at the discussion. The Judge found
that the Respondent violated the Statute as alleged in the complaint.
The Authority, however, concluded that the Respondent did not violate
the Statute because the meeting was not a formal discussion under
section 7114(a)(2)(A) Statute. The Authority found that neither the
length nor the location of the meeting suggested that it was a formal
discussion of working conditions.
Case No. 98-CA-10371
MARINE CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO
(Charging Party/Union)
September 30, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent to the attached Decision of the Administrative
Law Judge in the above-entitled proceedings. The General Counsel filed
an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated section 7116(a)(
1) and (5) of the Federal Service Labor-Management Relations Statute
(the Statute) by conducting a formal discussion with bargaining unit
employees without notifying the Union and affording it the opportunity
to be represented at the discussion. The Judge found that the
Respondent violated the Statute as alleged in the complaint.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed. We affirm the rulings. For the reasons which follow, we
conclude, contrary to the Judge, that the Respondent did not violate the
Statute.
The facts, which are fully set forth in the Judge's decision, are
summarized here.
On January 22, 1991, a supervisor informed a work leader that a
certain project had become a priority and asked him to solicit
volunteers for overtime. After soliciting volunteers, the work leader
reported to the supervisor that only one employee had volunteered for
overtime. The supervisor then asked the work leader to assemble a group
of the employees. Approximately 10 minutes later, the supervisor met
with the employees, told them that overtime was expected, that their
names would be entered on the overtime roster, and that if they did not
volunteer for overtime, he would initiate mandatory overtime. The
meeting lasted approximately 10 minutes.
The Judge found that the January 22 meeting was a formal discussion
within the meaning of section 7114(a)(2)(A) of the Statute. The Judge
noted that, consistent with longstanding Authority precedent, the fact
that a meeting is called for the purposes of making an announcement,
rather than engaging in dialogue, is not relevant in determining whether
a formal discussion occurred. The Judge also concluded that the meeting
was formal. Based on the Authority's decision in U.S. Department of
Labor, Office of the Assistant Secretary for Administration and
Management, Chicago, Illinois, 32 FLRA 465, 470 (1988) (Labor), the
Judge found that the meeting was formal because it was not "spontaneous"
and, instead, the affected supervisor "thought through his plans for the
meeting in advance." Judge's Decision at 5.
The Judge did not address the Respondent's contention that its
actions in holding the meeting were privileged under Article 15 of the
parties' collective bargaining agreement. /*/ However, the Judge
rejected the Respondent's contention that it was not obligated to notify
the Union of the meeting because the Union steward was present at the
meeting. The Judge noted that under Authority case law the fact that an
employee union representative is present at a meeting "does not relieve
an agency of its statutory obligation to provide notice in advance to
allow union participation, if required." Id. at 6. As the Respondent
admittedly failed to provide the Union notice of the January 22 formal
discussion and an opportunity to attend it, the Judge found that the
Respondent violated section 7116(a)(1) and (8) of the Statute.
The Respondent argues, among other things, that the Judge erred in
concluding that the disputed meeting was a formal discussion. The
Respondent asserts, in this regard, that the Judge "chose to ignore all
factual evidence indicating the informal nature of the gathering and
seemed to base his formality decision on the fact that (the supervisor)
knew in advance (albeit moments in advance) that he was going to place
the (affected employees) on overtime." Exceptions at 7.
The General Counsel argues, as relevant here, that the Judge's
conclusion that the disputed meeting constituted a formal discussion is
consistent with Authority precedent interpreting section 7114(a)(2)(A)
of the Statute. In particular, the General Counsel contends that the
Judge's conclusion that the meeting was sufficiently formal is
consistent with Department of the Air Force, Sacramento Air Logistics
Center, McClellan Air Force Base, California, 29 FLRA 594 (1987)
(McClellan).
We find that the Respondent did not violate the Statute by failing to
provide the Union with notice of and the opportunity to attend the
January 22 meeting because, for the following reasons, we conclude that
the meeting was not a formal discussion under section 7114(a)(2)(A)
Statute.
In determining whether a discussion or meeting is formal, within the
meaning of section 7114(a)(2)(A) of the Statute, the Authority considers
the totality of the facts and circumstances in a case. See generally,
National Treasury Employees Union v. FLRA, 774 F.2d 1181, 1189-91 (D.C.
Cir. 1985) (NTEU v. FLRA). Among other factors, the Authority examines:
(1) whether the individual who held the meeting is a first-level
supervisor or is higher in the management hierarchy; (2) whether any
other management representatives attended; (3) where the meeting took
place; (4) how long the meeting lasted; (5) how the meeting was
called; (6) whether a formal agenda was established; (7) whether
employee attendance was mandatory; and (8) the manner in which the
meeting was conducted. For example, Labor, 32 FLRA at 470.
In this case, the disputed meeting was held on the shop floor and
lasted only 10 minutes. Thus, neither the length nor the location of
the meeting suggest that it was a formal discussion of working
conditions. In addition, it is undisputed that: (1) only one
management official, a first-level supervisor, attended the meeting;
(2) no agenda was prepared for the meeting; and (3) no notes of the
meeting were taken. In our view, these matters, which indicate how
management intended to conduct, and conducted, the meeting also support
a conclusion that the meeting lacked requisite formality to satisfy the
requirements of section 7114(a)(2)(A) of the Statute.
It is undisputed that the meeting was called to solicit volunteers
for overtime and to explain both the need for overtime as well as the
procedures by which overtime would be assigned if an insufficient number
of employees volunteered. No other employment-related matters were
discussed. As we conclude that the meeting was not a formal discussion,
we do not determine whether, as asserted by the Respondent, its actions
in holding the discussion were privileged under the parties' agreement.
However, in assessing the formality of a discussion, we find it relevant
that the evident purpose of the meeting was to comply with and implement
the agreement.
Moreover, although the Judge correctly observed that the supervisor
"thought through his plans for the meeting in advance(,)" it is clear
that only 5 or 10 minutes elapsed between the supervisor's decision to
hold the meeting and the commencement of the meeting itself and that, as
noted previously, the supervisor's planning did not include an agenda.
Judge's Decision at 5. As such, we conclude that while the meeting may
not have been spontaneous, neither was its planning such that this
factor supports a conclusion that the meeting was a formal discussion.
Compare NTEU v. FLRA, 774 F.2d at 1190 (in discussing whether a meeting
was spontaneous, the court noted that "(f)or an attorney and two labor
relations specialists to meet at the office of one of the labor
relations specialists and in a single day interview all of the witnesses
to be called at an MSPB hearing surely indicates some advance
preparation.").
Finally, the decisions relied on by the Judge and the General Counsel
do not support a conclusion that the disputed meeting was a formal
discussion. In Labor, relied on by the Judge, the disputed meeting
occurred pursuant to an agreement made over 1 week in advance that
specified the attendees as well as the agenda for the meeting; a unit
employee was formally questioned by a management representative at the
meeting and the employee's answers were evaluated by other management
representatives. 32 FLRA at 470-71. In McClellan, relied on by the
General Counsel, the disputed meeting, which was scheduled 5 days in
advance, was held in a management representative's office, where a unit
employee was questioned by the representative and notes were taken of
the employee's answers. 29 FLRA at 603.
Considering the totality of the facts and circumstances in this case,
we conclude that the January 22 meeting did not constitute a formal
discussion, within the meaning of section 7114(a)(2)(A) of the Statute.
Accordingly, the Respondent's failure to notify the Union of the meeting
and afford it an opportunity to be represented at it did not violate the
Statute. Therefore, without addressing the Respondent's other
arguments, we will dismiss the complaint.
The complaint is dismissed.
Case No. 98-CA-10371
MARINE CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO
Charging Party
Raymond T. Lee, Esq., For the Respondent
Lisa C. Lerner, Esq., For the General Counsel
Before: ELI NASH, JR., Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, as amended, 5 U.S.C. Section 7101 et seq., (herein
called the Statute), and the Rules and Regulations of the Federal Labor
Relations Authority (herein called Authority), 5 C.F.R., Chapter XIV,
Part 2423.
Pursuant to an unfair labor practice charge filed on May 22, 1991 and
first amended on May 31, 1991 by the American Federation of Government
Employees, Local 1482, AFL-CIO (herein called the Union) the Regional
Director of the San Francisco Region of the Authority, issued a
Complaint and Notice of Hearing on August 26, 1991 alleging that on
January 22, 1991, Respondent held a formal discussion with unit
employees without first notifying the Union and affording it the
opportunity to be represented.
A hearing was held before the undersigned in Barstow, California.
All parties were represented and afforded the full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence and
to argue orally. Briefs which were timely filed by the parties have
been fully considered.
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor and my evaluation of the evidence, I make
the following:
1. On January 22, 1991, Supervisor Darryl Jones in Cost Work Center
725 (CWC 725) held two meetings. The first meeting was a safety
meeting. The second meeting, which is the subject of the instant
complaint, involved overtime on the production line for the M109
Project. Following the first meeting Jones told CWC 725 work leader
Ernie Wysinger he had learned earlier that morning, the M109 line work
had been put on a priority operation schedule. Because of this, Jones
asked Wysinger to get a list of volunteers for overtime work. Wysinger
complied, but was able to obtain only one employee on the M109 line to
volunteer for overtime. Upon being informed of Wysinger's lack of
success, Jones told Wysinger to gather the employees working on the M109
line together so that he, Jones, could talk to them. Somewhere between
5 and 10 minutes after they talked, the employees on the M109 line met
with Jones.
2. The parties stipulated that Jones did not provide advance notice
to the Union regarding the second meeting of January 22, 1991 to discuss
overtime, and that attendance at the meeting, for the employees involved
was mandatory. The meeting lasted somewhere between 10 and 20 minutes.
Jones, of course, was there on behalf of management. Wysinger and
essentially all of the employees working the M109 line were there.
3. At the meeting in question, Jones informed the employees that the
status of the M109 line had been upgraded, which was expected to involve
overtime. The employees on the M109 line were for the most part already
aware that overtime would be required since Wysinger, only minutes
earlier, had solicited, without much success, volunteers for overtime.
Jones told the M109 line employees that their names would be entered on
the overtime roster. He also informed them that if they did not work
the overtime as volunteers, he would then initiate mandatory overtime.
4. Although on the day of the meeting, employee Alex O'Laughlin was
artillery repairman on the M109 line, as well as a union steward, he
received no special or advance notice of the meeting regarding overtime
work from Respondent or from the Union. Thus, his attendance at the
meeting was in his capacity as an employee and not as a union
representative. O'Laughlin, therefore, did not receive any official
time for his attendance at the meeting.
5. Both O'Laughlin and Wysinger testified that an M109 employee
asked Jones about procedures for an employee to be released from the
overtime. Jones responded to that question by stating that the
procedure for an employee to be released from overtime was for the
employee to discuss the situation individually with Jones.
6. Jones confirmed that he received the telephone call regarding the
overtime changes for the M109 line and that he asked Wysinger to solicit
overtime volunteers from the employees individually. Since this failed
to produce the sort of response that he needed, he then asked Wysinger
to gather the M109 employees together. Jones then left for the
work-site, and Wysinger gathered the employees together.
7. Jones recalled that during the meeting he addressed the priority
conversion of the M109 project requiring overtime. He also recalled
discussing, that to meet the new schedule requirements, overtime would
be required. Jones went over the "specifics" of the situation with the
M109 unit employees informing them that the new schedule to meet the
priority needs would require that unit employees work every day, three
hours a day and eight hours a day or longer on weekends. Further, Jones
remembered telling them that if any of the employees had difficulties,
they should bring the problem directly to him. He indicated that he
would be evaluating these situations on case-by-case basis. /1/
In this rather routine formal discussion case, Respondent appeals to
the Authority for reexamination of its application of section 7114(a)(
2)(A) of the Statute. However, a substantial body of case law covering
the issue exists and Respondent offered no cogent reason why the
undersigned should ignore that law or recommend to the Authority that it
rethink its policy concerning formal discussions. Accordingly, it is my
view that under existing case law, the meeting of January 22, 1991 was a
formal meeting under section 7114(a)(2)(A) and that failure to provide
the Union with advance notice of the formal meeting violated section
7116(a)(1) and (8) of the Statute.
The law now requires that an exclusive representative has a right to
notice of a meeting under section 7114(a)(2)(A) of the Statute, if the
following elements are present: (1) a discussion, meeting, or
gathering; (2) which is formal; (3) between or among one or more
representatives of the Agency and one or more unit employees; (4)
concerning any personnel policy or practice or other general condition
of employment. Department of Veterans Affairs Medical Center, Denver
Colorado, 44 FLRA No. 35 (1992); Veterans Administration Medical
Center, Long Beach, California, 41 FLRA 1370 (1991), petition for review
filed sub nom. Department of Veterans Affairs Medical Center, Long Beach
California v. FLRA, No. 91-70640 (9th Cir. October 23, 1991); U.S.
Department of the Army, New Cumberland Army Depot, New Cumberland,
Pennsylvania, 38 FLRA 671 (1990); relying on, inter alia, Veterans
Administration, Washington, D.C. and V.A. Medical Center, Brockton
Division, Brockton, Massachusetts, 37 FLRA 747 (1990); U.S. Department
of Justice, Bureau of Prisons, Federal Correctional Institution, (Ray
Brook, New York), 29 FLRA 584, 588-589 (1980).
The determination as to whether a meeting is formal under the Statute
requires consideration of the totality of the circumstances. U. S.
Department of Labor, Office of the Assistant Secretary for
Administration and Management, Chicago, Illinois, 32 FLRA 465, 470
(1988). Several factors are relevant, including the impact and purpose
of section 7114(a)(2)(A), which is to provide the exclusive
representative with an opportunity to protect its interests and to
ensure that same protection to bargaining unit employees. This interest
is consistent with the full range of representational rights and
responsibilities.
Respondent questions the Authority interpretation of both "formal"
and "discussion". The Authority presently seems satisfied that actual
discussion or dialogue is not necessary for an encounter to qualify as a
formal discussion within the meaning of section 7114(a)(2)(A). Veterans
Administration Medical Center, supra; Department of Defense, National
Guard Bureau, Texas Adjutant General's Department 149th TAC Fighter
Group, (ANG) (TAC), Kelly Air Force Base, 15 FLRA 529, 532-533 (1984).
In Kelly, supra, the meeting was called in order to outline a change in
hours of the workweek to unit employees. The Authority found that
attaching the ordinary meaning to "discussion" would not be consistent
with the purposes and policies of the Statute. The Authority also
concluded that where conditions of employment are being discussed, the
exclusive representative needs adequate advance notice and an
opportunity to be present at the meeting, to place it in a position to
safeguard the interests of unit employees. The fact that the meeting is
called for the purpose of making an announcement, rather than
engendering dialogue was considered to be of no consequence. Thus,
actual debate or argument is not necessary to make the meeting formal
since it could not be ascertained until after the meeting had taken
place whether argument or debate had occurred. Seemingly the Authority
in Kelly, opted to protect unit employee rights by not allowing any
evisceration of the exclusive representative's right to be present at
these meetings under 7114(a)(2)(A) by permitting an agency merely to
refuse to entertain questions at the meeting.
Respondent view of the "formality" attached to the meeting of January
22, 1991 must also be rejected. Formality is not a rigid paradigm, but
is rather a consideration of the totality of the facts. U.S. Department
of Labor, supra. Jones' testimony indicated that he planned the meeting
in advance. He testified that he received a telephone call indicating a
change to employees' conditions of employment. Then he asked Wysinger
to solicit volunteers for overtime. When the solicitation failed to
produce enough volunteers, Jones decided to put all employees on the
roster for overtime work. Jones' actions, undoubtedly, were based on
his determination to require overtime work and thereby, to alter the
conditions of employment of M109 line employees. He learned of this
need to effect changes to conditions of employment prior to contacting
Wysinger. The record indicates that Jones thought through his plans for
the meeting in advance. Thus, his announcement to M109 line employees
that they were to work overtime and that they would not be excused from
such work without his permission, was not spontaneous. According, it is
found that this meeting contained elements of a formal discussion under
the Statute.
The evidence shows that Jones who is a representative of Respondent,
and all affected unit employees attended the January 22, 1991 meeting
which lasted about 10 minutes. Jones testified that he called the
meeting for the purpose of discussing with employees the overtime roster
and potential changes to overtime procedures. He also indicated that
potentially a need might exist to discuss these changes when
difficulties arose in the future. The subject matter of overtime,
changes to overtime procedures, and procedures for excuse from the
overtime work unquestionably concerned a general condition of
employment.
The record evidence persuades me that the January 22, 1991 meeting
was a formal discussion within the meaning of section 7114(a)(2)(A).
Thus, all four elements set out in present case law are satisfied.
Elements one and two are clearly complied with and the meeting was a
formal discussion. With respect to element three, the meeting was
between an agency representative and unit employees; and, the subject
matter of the meeting, overtime concerned a condition of employment,
thereby conforming to element four.
Finally, Respondent persists that, where there is actual
representation at a meeting, a violation of the Statute is precluded.
Here a union steward was present, but only because he was working on the
line and not because he was a union representative. Respondent's
position has been rejected in several cases such as Department of the
Treasury, U.S. Customs Service, Miami, Florida, 29 FLRA 610 (1987),
construing Department of the Air Force, Sacramento Air Logistics Center,
McClellan Air Force Base, California, 29 FLRA 594 (1987). Indeed,
McClellan, supra, specifically held that the mere presence of a union
steward at the meeting is not sufficient to comply with section
7114(a)(2)(A). Case law is clear that such presence does not relieve an
agency of its statutory obligation to provide notice in advance to allow
union participation, if required. Therefore, it is not difficult to
reject the argument that the Union here was represented since there was
a union steward present, since he was there only in his capacity of an
employee. Furthermore, case law reveals that an exclusive
representative must have the right and ability to designate its own
representative to attend any formal discussion. McClellan Air Force
Base, supra; Department of the Air Force, 63rd Civil Engineers
Squadron, Norton Air Force Base, California, 22 FLRA 843 (1986); and
Internal Revenue Service, Washington, D.C. and Fresno Service Center,
Fresno, California, 16 FLRA 98 (1984). This ability of the exclusive
representative to choose its own representative is ensured by the
requirement that the exclusive representative receive prior notice of
the meeting. U.S. Customs Service, at 614. Not only did Respondent
stipulate that it failed to provide advance notice of the meeting to the
Union as required, but the short notice given to all employees that a
meeting was to be held effectively prevented a Union presence.
Accordingly, it is found that the Union was not represented at this
formal discussion.
Considering the totality of the circumstances, the January 22, 1991
meeting in CWC 725 was, in my view, a formal discussion under section
7114(a)(2)(A). Consequently, it is found that Respondent's failure to
provide the Union with advance notice of this formal meeting constituted
a violation of section 7116(a)(1) and (8) of the Statute. /2/
Based on the foregoing, it is recommended that the Authority adopt
the following:
Pursuant to section 7118(a)(7)(a) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. section 7118(a)(7)(A), and
section 2423.29(b)(1) of the Rules and Regulations of the Federal Labor
Relations Authority, the Authority hereby orders that the Marine Corps
Logistics Base, Barstow California, shall:
1. Cease and desist from:
(a) Conducting formal discussions with employees in the
bargaining unit exclusively represented by the American Federation
of Government Employees, Local 1482, AFL-CIO, concerning
grievances or any personnel policies or practices or other general
conditions of employment, without first affording it prior notice
of and the opportunity to be represented at the formal
discussions.
(b) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of 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 Federal Service
Labor-Management Relations Statute:
(a) 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 Commanding
Officer 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 insure that such
Notices are not altered, defaced, or covered by any other
material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the San Francisco
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 herewith.
Issued, Washington, DC, March 24, 1992
ELI NASH, JR.
Administrative Law Judge
(*) That article, entitled "Overtime," provides, in pertinent part:
Section 3 Notification. Management will normally notify the
employees of planned overtime . . . at least forty-eight hours in
advance . . . . If an overtime situation exists which precludes
the normal notification, the supervisor will notify the employees
when he or she makes the determination.
Section 4 Distribution.
b. When special skill or familiarity . . . are not required .
. . supervisors will solicit volunteers for such overtime
assignment by announcing the particulars of the overtime
assignment to employees in the needed job category who are on duty
at the time. If more employees volunteer than are needed, the
supervisor shall go to the voluntary overtime roster . . . . If
there are no or too few volunteers . . . the supervisor shall go
to the mandatory roster . . . .
Jt. Exh. 1.
(1) Jones also testified that the job requirements had been keeping
employees very busy. The relevance of this probably is that employees
were already being heavily worked.
(2) The General Counsel's uncontested Motion to Correct Transcript is
granted.
WE WILL NOT conduct formal discussions with employees in the
bargaining unit exclusively represented by the American Federation of
Government Employees, Local 1482, AFL-CIO, concerning grievances or any
personnel policies or practices or other general conditions of
employment, without first affording it the prior notice of and the
opportunity to be represented at the formal discussions.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, San
Francisco Regional Office, whose address is: 901 Market Street, Suite
220, San Francisco, California 94103, and whose telephone number is:
(415) 744-4000.
45 FLRA 1324
45 FLRA NO 132
U.S. Dept. of the Navy, Naval Aviation Depot, Cherry Point, North
Carolina and Int'l Assoc. of Machinist and Aerospace Workers, Lodge 2297
(Frost, Arbitrator), Case No. 0-AR-2280 (Decided September 30, 1992)
7122(a)
5 U.S.C. Section 5596
ARBITRATION EXCEPTIONS
OVERTIME
THE BACK PAY ACT
DAMAGES
The Arbitrator sustained a grievance in which the grievant claimed
that he was denied the opportunity to work overtime in his assigned
organization while he was on detail to another organization. The
Arbitrator ordered the Agency to pay the grievant for 170 hours of
overtime work. The Agency filed exceptions with the Authority asserting
that the Arbitrator's award was contrary to the Back Pay Act, 5 U.S.C.
Section 5596. The Authority denied the Agency's exceptions.
Preliminarily, the Authority found no merit in the Union's contention
that the Agency's exceptions were untimely filed. As to the merits, the
Authority concluded that the award was not contrary to the Back Pay Act.
The Authority found that the Arbitrator made the required findings for
an award of backpay. The Arbitrator specifically found that the Agency
violated the parties' agreement regarding the assignment of overtime by
failing to distribute overtime fairly and equitably. The Authority
noted that violation of a collective bargaining agreement constitutes an
unjustified or unwarranted personnel action under the Back Pay Act.
The Authority further added that where it is established that
employees entitled to overtime under a collective bargaining agreement
do not receive that overtime because of a violation of the collective
bargaining agreement by an agency, an arbitrator can find that those
employees are entitled to compensation for the lost overtime.
Therefore, the Authority concluded that, based on the Agency's violation
of the collective bargaining agreement, the award met the first
requirement for an award of backpay under the Back Pay Act.
In addition, the Authority concluded that the Arbitrator effectively
found that, because of the Agency's unwarranted and unjustified
personnel action, the grievant was deprived of overtime compensation
that he would have received if the Agency had not failed to comply with
Article 23, Section 1 of the agreement.
Lastly, the Authority noted that it disagreed with the Agency's
contention that the Arbitrator's award of backpay to the grievant for
170 hours of overtime work constituted an improper award of damages.
Case No. 0-AR-2280
U.S. DEPARTMENT OF THE NAVY, NAVAL AVIATION DEPOT, CHERRY POINT,
NORTH CAROLINA
(Agency)
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LODGE
2297
(Union)
September 30, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Charles H. Frost filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Union filed an
opposition to the Agency's exceptions.
The Arbitrator sustained a grievance in which the grievant claimed
that he was denied the opportunity to work overtime in his assigned
organization while he was on detail to another organization. The
Arbitrator ordered the Agency to pay the grievant for 170 hours of
overtime work. The Agency filed exceptions with the Authority asserting
that the Arbitrator's award is contrary to the Back Pay Act, 5 U.S.C.
Section 5596. For the following reasons, we will deny the Agency's
exceptions.
The grievant was detailed from his duty station in the 960 Division
to a duty station in the 670 Division. The detail lasted from March 4,
1991, until July 1, 1991. While on the detail, the grievant was not
offered overtime work in his old duty station in the 960 Division. He
filed a grievance claiming that he had lost the opportunity to perform
170 hours of overtime work. In the grievance, the grievant asserted
that another employee in the 960 Division who had also been detailed to
the 670 Division had been assigned overtime work in the 960 Division
while on detail to the 670 Division. The grievant charged that the
Agency had violated Article 23, Section 1 of the parties' collective
bargaining agreement by not assigning him overtime work in a fair and
equitable manner. /*/
The grievance was not resolved and was submitted to arbitration. The
parties were unable to agree on an issue and the Arbitrator framed the
issue as follows:
Did the (Agency) violate Article 23, Section 1 of the agreement
when it did not afford (g)rievant the opportunity to work overtime
while he was detailed to another division between March 4, 1991
and July 1, 1991. If so, what should the remedy be?
Award at 5.
The Arbitrator noted that the parties entered into stipulations as to
the facts underlying the grievance, including a stipulation that "(t)his
grievance is based on the lost opportunity to work 170 hours overtime."
Id. at 3, Stipulation 3. The parties also stipulated that another
employee in the 960 Division worked overtime in the 960 Division on
April 27 and June 8, 1991, while on detail to the 670 Division.
The Union asserted before the Arbitrator that the grievant had been
told by his former supervisor that employees detailed outside the 960
Division were not eligible for overtime assignments within that division
while on detail, yet another detailed employee had received overtime
assignments within the 960 Division on two occasions while on detail to
another division. The Union claimed, therefore, that the grievant was
not treated fairly and equitably as required by the agreement. The
Agency contended before the Arbitrator that the policy of the 960
Division was to not assign regular or overtime work to employees while
they were detailed to another division. Therefore, the Agency argued,
there was no obligation to assign overtime work in the 960 Division to
the grievant while he was on detail to another division and the grievant
was not entitled to 170 hours of retroactive overtime pay, regardless of
whether another employee in a similar situation was erroneously assigned
overtime work in the 960 Division by a supervisor.
The Arbitrator found that the circumstances of the case showed that
the Agency acted in good faith toward the grievant and did not deny him
overtime opportunity as a result of "any ulterior motive." Award at 9.
The Arbitrator noted that the agreement was silent concerning relief for
Agency errors in assigning overtime and stated:
(U)nder these circumstances, it is implied that the parties
intended to vest in the Arbitrator the authority to fashion the
form of relief which would be equitable and which would afford
content and meaning to the parties(') agreement.
Id. at 10. He noted that in cases in which a grievant is harmed by an
agency's violation of a contract, "the person deprived of the contract
benefit should be made whole for the loss (and is) entitled to
compensatory damages, no more and no less." Id.
The Arbitrator then examined the provisions of the parties'
collective bargaining agreement dealing with the assignment of overtime
and concluded that based on the record, the grievant was entitled to
have been offered overtime in the 960 Division. The Arbitrator noted
the testimony showing that other employees in situations similar to that
of the grievant had been offered overtime work. The Arbitrator also
noted that management's statement of overtime policy for the 960
Division was issued after the grievance in this case was filed and left
open the question of whether one division can establish an overtime
policy that is different from the policies of other divisions.
Noting awards by other arbitrators giving grievants monetary remedies
for management violations of overtime policies, the Arbitrator made the
following award:
1. The (Agency) violated Article 23, Section 1, of the
agreement when it did not afford (g)rievant the opportunity to
work overtime while he was detailed to another division between
March 4, 1991 and July 1, 1991.
2. Grievant shall be paid for 170 hours at the applicable
overtime rate.
Id. at 18.
A. The Agency
The Agency contends that the award is contrary to the Back Pay Act.
In support of its contention, the Agency asserts that the Arbitrator
failed to make the required causal connection between a violation of the
parties' collective bargaining agreement and the failure of the grievant
to be given overtime work to which he was entitled. The Agency
maintains that "the award does not make clear whether, but for the
detail, the grievant would have received the overtime." Exceptions at 5.
The Agency also contends that the Arbitrator failed to provide a
rational basis for his award and did not provide the degree of
articulation required by Authority precedent to support awards of
backpay under the Back Pay Act. According to the Agency, "the (A)
rbitrator leaped from an analysis of whether a contract violation had
occurred directly to a determination of the award . . . (and) neglected
to explain how he arrived at an award of 170 hours overtime pay and why
such an award was warranted." Id. at 6-7. The Agency asserts that the
award of 170 hours of overtime pay "is inconsistent with a realistic
assessment of the amount of overtime the grievant would have worked(,)"
as that number represents the total amount of overtime hours the
grievant could have worked if he had been offered and accepted all
possible assignments. Id. at 7. The Agency maintains that "the (A)
rbitrator has not sought to argue that the grievant would have earned
that amount of overtime, but rather that he was entitled to it as
damages." Id. at 8.
B. The Union
The Union contends that the Agency's exceptions are untimely filed
and should be dismissed. Regarding the merits of the Agency's
exceptions, the Union denies that the award is contrary to the Back Pay
Act and maintains that the Arbitrator found that the Agency committed an
unjustified and unwarranted personnel action by violating the parties'
collective bargaining agreement and that the violation resulted in a
reduction in overtime pay the grievant would have received.
The Union contends that the award of 170 hours of overtime pay is
correct and is what the grievant "normally" would have received for
purposes of the Back Pay Act. Opposition at 1. The Union notes that
there is no provision under the Back Pay Act for deducting times during
which an employee might have been absent for sickness or might have
elected not to work. The Union argues that the parties agreed in the
stipulations of facts submitted to the Arbitrator that the amount of 170
hours of overtime pay was claimed by the grievant and that the
stipulations "clearly establish a causal connection between the (g)
rievant's detail and an entitlement to the 170 hours of overtime." Id.
at 2.
A. Preliminary Matter
We find no merit in the Union's contention that the Agency's
exceptions were untimely filed. The time limit for filing exceptions to
an arbitration award is 30 days beginning on the date the award is
served on the filing party. 5 C.F.R. Section 2425.1(b). The date of
service is the date the arbitration award is deposited in the U.S. mail
or is delivered in person. 5 C.F.R. Section 2429.27(d). The record in
this case indicates that the Arbitrator's award, although dated April 1,
1992, was mailed to the parties on April 7, 1992, as evidenced by the
postmark on the envelope containing the Arbitrator's award. See
Exceptions, Attachment 1. The 30-day period for filing exceptions to
the award began on April 7, 1992, and expired on May 6, 1992. 5 C.F.R.
Section 2425.1(b). As the award was served by mail, 5 additional days
were added to the due date. 5 C.F.R. Section 2429.22. Therefore, any
exception to the award had to be either postmarked by the U.S. Postal
Service or received in person at the Authority no later than May 11,
1992, in order to be timely filed. The Agency's exceptions were
delivered to the Authority on that date and are, therefore, timely
filed. See National Federation of Federal Employees, Council of
Veterans Administration Locals and U.S. Department of Veterans Affairs,
45 FLRA 38 (1992).
B. The Award Is Not Contrary to the Back Pay Act
Under the Back Pay Act, an award of backpay is authorized only when
the grievant has been affected by an unjustified or unwarranted agency
personnel action that has resulted in the withdrawal or reduction of all
or part of the grievant's pay, allowances, or differentials. The
Authority has held that, in order to award backpay, an arbitrator must
find that: (1) the aggrieved employee was affected by an unjustified or
unwarranted personnel action; (2) the personnel action directly
resulted in the withdrawal or reduction of the grievant's pay,
allowances, or differentials; and (3) but for such action, the grievant
otherwise would not have suffered the withdrawal or reduction. For
example, U.S. Department of Health and Human Services, Family Support
Administration, Washington, D.C. and National Treasury Employees Union,
Local 250, 42 FLRA 347, 357 (1991). In this case, the Arbitrator made
the required findings for an award of backpay.
The Arbitrator specifically found that the Agency violated the
parties' agreement regarding the assignment of overtime by failing to
distribute overtime fairly and equitably. Violation of a collective
bargaining agreement constitutes an unjustified or unwarranted personnel
action under the Back Pay Act. See U.S. Department of Justice,
Immigration and Naturalization Service and American Federation of
Government Employees, National Immigration and Naturalization Service
Council, 42 FLRA 222, 232 (1991). Where it is established that
employees entitled to overtime under a collective bargaining agreement
do not receive that overtime because of a violation of the collective
bargaining agreement by an agency, an arbitrator can find that those
employees are entitled to compensation for the lost overtime. See
Federal Employees Metal Trades Council and U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 39 FLRA 3 (1991).
Therefore, the Arbitrator's award, based on the Agency's violation of
the collective bargaining agreement, meets the first requirement for an
award of backpay under the Back Pay Act.
Further, the Arbitrator found that the Agency had given other
employees the opportunity to work overtime in the 960 Division while
those employees were on detail outside the 960 Division. Consequently,
the Arbitrator stated that he was "compelled to support the position of
the Union." Award at 16. We conclude that the Arbitrator effectively
found that, because of the Agency's unwarranted and unjustified
personnel action, the grievant was deprived of overtime compensation
that he would have received if the Agency had not failed to comply with
Article 23, Section 1 of the agreement. Although the Arbitrator did not
state specifically that the loss of overtime compensation would not have
occurred but for the Agency's violation of the agreement, he made the
required finding of a direct causal connection between the two events
when he found that the record in the case supported the Union's position
that the grievant was unfairly deprived of overtime opportunities
because other employees similarly situated were assigned overtime.
An arbitrator is not required to make an explicit "but for" finding
that there is a direct causal connection between an agency's improper
act and the loss of pay by an employee. Such a causal connection can
also be implicit in the arbitrator's award. See American Federation of
Government Employees, Local 31 and U.S. Department of Veterans Affairs,
Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991). In this case,
the Arbitrator found that there was a direct causal connection between
the Agency's violation of the agreement and the grievant's loss of the
opportunity to work overtime. Further, the Arbitrator implicitly found
that, but for the violation of the agreement, the grievant would have
worked that amount of overtime. Therefore, the award satisfies the
second and third requirements for the award of backpay to the grievant.
We find no merit in the Agency's contentions that the award is
contrary to the Back Pay Act because the Arbitrator improperly
calculated the amount of overtime the grievant would have worked if the
Agency had offered him the opportunity to work overtime in the 960
Division while he was on detail. The grievant claimed that he would
have worked 170 hours of overtime if he had been given the opportunity
and the parties stipulated that "(t)his grievance is based on the lost
opportunity to work 170 hours (of) overtime." Award at 3. Further, the
Agency concedes that there was a "possible total of 170 hours of
overtime" available during the period in question. Exceptions at 7.
The Agency's exception with regard to the amount of backpay awarded the
grievant constitutes mere disagreement with the Arbitrator's finding
that the grievant was entitled to backpay for 170 hours of lost overtime
and provides no basis for finding the award deficient. See National
Federation of Federal Employees, Local 259 and U.S. Department of the
Army, Corps of Engineers, Memphis District, Memphis, Tennessee, 45 FLRA
773, 779 (1992) (mere disagreement with an arbitrator's reasoning and
conclusions and findings of fact provides no basis for finding an award
deficient under section 7122(a) of the Statute).
Further, we disagree with the Agency's contention that the
Arbitrator's award of backpay to the grievant for 170 hours of overtime
work constitutes an improper award of damages. The Arbitrator's award
is based on the stipulations of the parties that the grievant claimed
entitlement to that amount of overtime and the fact that a total of 170
hours of overtime was available during the time period in question. The
Arbitrator found that the grievant would have performed that amount of
overtime work if he had been given the opportunity. The Arbitrator's
award of backpay for 170 hours of overtime work does nothing more than
reimburse the grievant for the lost overtime pay. We find nothing in
the award that supports the Agency's contention that the Arbitrator
awarded damages instead of reimbursement of pay to which the grievant
was entitled. See U.S. Department of the Interior, Bureau of
Reclamation, Great Plains Region and International Brotherhood of
Electrical Workers, Local 1759, 42 FLRA 902 (1991), request for
reconsideration denied, 43 FLRA 314 (1991). Consequently, this
contention provides no basis for finding the award deficient.
In conclusion, the Agency's exceptions fail to establish that the
Arbitrator's award is contrary to the Back Pay Act or otherwise
deficient. Accordingly, we will deny the exceptions.
The Agency's exceptions are denied.
(*) Article 23, Section 1 of the parties' collective bargaining
agreement provides:
The Employer agrees that the provisions of this agreement and all
rules and regulations controlling working conditions and benefits
for members of the bargaining unit will be administered fairly and
equitably.
Award at 7.
45 FLRA 1310
45 FLRA NO 131
U.S. Dept. of Agriculture Forest Service, Chattahoochee-Oconee
National Forests, Gainsville, Georgia and NFFE, Local 1329, Case No.
4-CA-10602 (Decided September 29, 1992)
7116(a)(1) and (2)
5 U.S.C. Section 5596
7106(a)(2)(B)
UNFAIR LABOR PRACTICE
BACKPAY WITH INTEREST
MGT'S RIGHT TO ASSIGN WORK
The complaint alleged that the Respondent violated section 7116(a)(
1) and (2) of the Statute when the Respondent failed and refused to
promote a Union steward to a GS-09 position because he engaged in
protected activity. The complaint also alleged that the Respondent
violated section 7116(a)(1) of the Statute by interfering with,
restraining, or coercing employees in the exercise of their rights under
section 7102 of the Statute. The Respondent filed an exception only to
the Judge's recommended Order.
The Authority reviewed the rulings made by the Judge and found that
no prejudicial error was committed. The Authority affirmed the rulings
and adopted the Judge's findings, conclusions. However, the Authority
modified the Judge's recommended Order.
The Authority rejected the Respondent's argument that the Judge's
recommended Order that the employee be retroactively promoted to a GS-09
position was inappropriate because it was inconsistent with management's
right to assign work under section 7106(a)(2)(B) of the Statute. The
Authority found that the Order issued by the Judge in this case was
similar to orders in other cases where it had been determined that
employees had not been selected for promotion because of unlawful
consideration of their protected activity and where the respondent had
not shown that it would have taken the same action in the absence of
such consideration.
The General Counsel argued that the Judge's Order be modified to
provide explicitly that interest be paid pursuant to the Back Pay Act, 5
U.S.C. Section 5596. The Authority agreed with the General Counsel that
the Judge's Order to make the employee whole implicitly included the
payment of interest in accordance with the Back Pay Act. Therefore, the
Authority noted that in the interest of clarity, it would modify the
Order to specify that the remedy included backpay with interest.
Case No. 4-CA-10602
U.S. DEPARTMENT OF AGRICULTURE, FOREST SERVICE, CHATTAHOOCHEE-OCONEE
NATIONAL FORESTS, GAINESVILLE, GEORGIA
(Respondent)
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1329
(Charging Party)
September 29, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority on exceptions
to the attached decision of the Administrative Law Judge filed by the
Respondent. The Respondent filed an exception only to the Judge's
recommended Order. The General Counsel filed an opposition and
cross-exception to the Respondent's exception.
The complaint alleged that the Respondent violated section 7116(a)(
1) and (2) of the Federal Service Labor-Management Relations Statute
(the Statute) when the Respondent failed and refused to promote a Union
steward to a GS-09 position because he engaged in protected activity.
The complaint also alleged that the Respondent violated section 7116(
a)(1) of the Statute by interfering with, restraining, or coercing
employees in the exercise of their rights under section 7102 of the
Statute.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed. We affirm the rulings. Upon consideration of the Judge's
decision, the exceptions, the opposition, the cross-exception, and the
entire record, we adopt the Judge's findings, conclusions, and
recommended Order as modified below.
We reject the Respondent's argument that the Judge's recommended
Order that the employee be retroactively promoted to a GS-09 position is
inappropriate because it is inconsistent with management's right to
assign work under section 7106(a)(2)(B) of the Statute. The Order
issued by the Judge in this case is similar to orders in other cases
where it has been determined that employees have not been selected for
promotion because of unlawful consideration of their protected activity
and where the respondent has not shown that it would have taken the same
action in the absence of such consideration. See Department of the
Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg,
North Carolina, 43 FLRA 1414 (1992) (Fort Bragg); Letterkenny Army
Depot, 35 FLRA 113 (1990); United States Department of Defense,
Department of the Air Force, Headquarters 47th Flying Training Wing
(ATC), Laughlin Air Force Base, Texas, 18 FLRA 142, 168-69 (1985).
The General Counsel contends that the Judge's Order should be
modified to provide explicitly that interest be paid pursuant to the
Back Pay Act, 5 U.S.C. Section 5596. We agree with the General Counsel
that the Judge's Order to make the employee whole implicitly includes
the payment of interest in accordance with the Back Pay Act. However,
in the interest of clarity, we will modify the Order to specify that the
remedy includes backpay with interest. See Fort Bragg, 43 FLRA at 1419.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the U.S. Department of Agriculture, Forest Service,
Chattahoochee-Oconee National Forests, Gainesville, Georgia, shall:
1. Cease and desist from:
(a) Refusing or failing to promote Phillip Greene to a GS-09
position because of his protected activities.
(b) Making statements to employees which interfere with,
coerce, or discourage any employee from filing grievances or
exercising rights assured by the Federal Service Labor-Management
Relations Statute.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of 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) Retroactively promote Phillip Greene to a GS-09 position as
of January 24, 1991, and make him whole by paying him backpay,
with interest for the loss of pay suffered by him from that date
by reason of the refusal and failure to promote him due to his
protected activities.
(b) Post at its facilities in Gainesville, Georgia, 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 Regional Forester, 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 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Atlanta 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.
WE WILL NOT refuse or fail to promote Phillip Greene to a GS-09
position because of his protected activities.
WE WILL NOT make statements to our employees which interfere with,
coerce, or discourage any employee from filing grievances or exercising
rights assured by the Federal Service Labor-Management Relations
Statute.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL retroactively promote Phillip Greene to a GS-09 position as
of January 24, 1991, and make him whole by paying him backpay, with
interest for the loss of pay suffered by him from that date by reason of
the refusal and failure to promote him due to his protected activities.
(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 any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Atlanta Regional
Office, whose address is: 1371 Peachtree Street, NE, Suite 122,
Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.
Case No. 4-CA-10602
U.S. DEPARTMENT OF AGRICULTURE, FOREST SERVICE, CHATTAHOOCHEE-OCONEE
NATIONAL FORESTS, GAINESVILLE, GEORGIA
Respondent
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1329
Charging Party
Heyward B. Washington and Rufus Caruthers, Jr., For the Respondent
Richard S. Jones, Esq., For the General Counsel
Before: WILLIAM NAIMARK, Administrative Law Judge
Pursuant to a Complaint and Notice of Hearing issued on August 29,
1991 by the Regional Director for the Atlanta Regional Office, Federal
Labor Relations Authority, a hearing was held before the undersigned on
November 20, 1991 at Atlanta, Georgia.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq., (herein called the Statute). It is
based on a second amended charge filed on August 29, 1991 by the
National Federation of Federal Employees, Local 1329 (herein called the
Union), against U.S. Department of Agriculture, Forest Service,
Chattahoochee-Oconee National Forests, Gainesville, Georgia (herein
called the Respondent).
The Complaint alleged, in substance, that since January 1991
Respondent has failed and refused to promote employee Phillip Greene,
Union steward, to a GS-09 position because he engaged in protected
activity -- all in violation of section 7116(a)(1) and (2) of the
Statute.
Respondent's Answer, filed on September 23, 1991, denied the
commission of any unfair labor practices. It also denied that (a) since
February 12, 1991 employee Greene has been a bargaining unit employee,
(b) Greene was a steward for the Union who filed grievances and engaged
in protected activity during the relevant time herein.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed which have been
duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor and from all of the testimony and evidence adduced at
the hearing, I make the following findings and conclusions:
1. At all times material herein the National Federation of Federal
Employees (NFFE) has been, and still is, the exclusive representative of
a nationwide consolidated unit of employees, including employees of
Respondent.
2. At all times material herein, the Union has been, and still is,
the designated agent of NFFE to represent the unit employees of
Respondent at the Chattahoochee-Oconee National Forests.
3. Phillip Greene has been employed by Respondent for six years.
Prior to November 1991 he was a GS-07 Forestry Technician, and he
performed law enforcement and recreation duties. District Ranger John
W. Moore supervised Greene full time then, and Robert Fitzmayer provided
technical supervision and recreation at that time.
4. The record reflects that on September 24, 1989 Moore wrote a memo
regarding Greene. He stated therein that Greene's work on law
enforcement averages yearly more than 50 percent, although some weeks it
might be as high as 80 to 90 percent; that while Greene performs
collateral duties like most employees, Moore relied on him as the
primary law enforcement officer in the district for the past four years.
Finally, the memo recited that Greene is a very conscientious and
dedicated officer, and is very necessary to the effective operation of
the district.
5. At or about the aforesaid date Greene had a conversation with
Moore since he had heard that one could not be promoted to the position
of Special Agent after he reached 35 years of age. Moore advised Greene
this was not true, but that he could go to a GS-09 if he has had
collateral duties. The latter term referred to a combination of
recreation and law enforcement duties.
6. As a result of several employees advising Greene of complaints re
Moore's handling things, Greene spoke to Moore on August 1, 1990 about
these concerns. He followed it up with a letter on August 2, 1990
outlining the complaints which had to do with such matters as
assignments, pay raises, job announcement notifications and lack of
training. Greene mentioned his own concerns and that his desire was to
perform law enforcement duties full time. /1/
7. On August 30, 1990 Greene filed seven grievances concerning
Moore's conduct and various working conditions, most of which involved
just Greene. Moore responded by letter (undated), but none of the
complaints were resolved in Greene's favor.
8. Supervisor Kenneth D. Henderson replied to the grievance in a
letter dated November 7, 1990 (G.C. Exh. 6), and Regional Forester John
Alcock addressed two of the grievances by letter dated January 11, 1991
(G.C. Exh. 7). In respect to almost all matters, Moore was instructed
to take actions which corrected the complaints made by Greene.
9. On January 13, 1991 two other technicians, William Guthrie and
Tony Wild were promoted from GS-07 to GS-09. Moore, who was their
supervisor, told Greene that the promotion for Guthrie came in the
process; that Wild's promotion had to be resubmitted four or five times
but Moore was finally able to obtain it.
10. Several days later Fitzmayer, who was Greene's immediate
supervisor, submitted to Moore a new proposed job description for a full
time law enforcement position at a GS-09 level. At that time Fitzmayer
was supervising Greene two days a week. He testified that Greene was
then performing about 70-80 per cent law enforcement duties; that he
intended the submission of the job description would result in the
selection of Greene for the full time law enforcement position. Moore
returned it to Fitzmayer for revision since he disagreed with the need
for a full time law enforcement official.
11. Under date of January 23, 1991 Moore sent Fitzmayer a note
telling him to encourage Greene to retain his correct collateral duty
job (law enforcement and recreation duties) and not seek a full time law
enforcement position. Moore states it was not feasible at that time and
it would "only further contribute to his morale problems." Further, that
Fitzmayer needed Greene badly in recreation and Moore expected
Fitzmayer's assistance and support in this idea.
12. On January 24, 1991 Greene met with both Fitzmayer and Moore and
asked why he had not been put in for a GS-09. Fitzmayer said he had
done so and had given the paperwork to Moore. Whereupon Greene asked
Moore what was the problem and what would be needed to get the
promotion. The latter replied "Because I had to waste -- I may have had
time to put in for a promotion for you. But I had to waste too much
time on your grievances." Greene then asked Moore if there were plans to
put him in for a promotion. After Moore replied, "maybe", Greene asked
if the supervisor would let him know in a week or two. Moore said he
would not as he did not want to be pressured, but might let him know
something in a month. /2/
13. In a memo dated June 18, 1991 Moore wrote Fitzmayer regarding a
promotion for Greene. He instructed Fitzmayer to update the employee's
job description to reflect his current duties so it can be accurately
classified as to the appropriate grade level. Moore stated that
Fitzmayer could get a GS-08 job description from another District for an
individual who has a similar job to Greene.
14. Record facts show that in November 1991 Greene learned he was
promoted to a GS-08. Greene testified he had not received a paycheck
nor been advised as to the amount of pay he will receive. He had not
been promoted to a GS-09 at the date of the hearing herein. /3/
Two issues are presented for determination: (1) whether the refusal
and failure by Ranger Moore to promote Greene from a GS-07 to a GS-09
was because Greene filed grievances, and hence was discriminatory in
violation of section 7116(a)(1) and (2) of the Statute; (2) whether
statements made by Moore to Greene on January 23, 1991 requesting the
reason why Moore did not promote Greene amounted to interference,
restraint and coercion in violation of section 7116(a)(1) of the
Statute.
(1) In respect to cases involving alleged discrimination, the
Authority set forth in Letterkenny Army Depot, 35 FLRA 113 (1990), the
requirements which must be established by the General Counsel. It must
be shown that (a) the employee was engaged in protected activity; and
(b) such activity was a motivating factor in the agency's treatment of
the employee in connection with hiring, tenure, promotion, or other
conditions of employment. Once such a prima facie case has been
established, an agency will not be found to have violated section 7116(
a)(2) if it can demonstrate, by a preponderance of the evidence, that
there was legitimate justification for its action, and the same action
would have been taken even in the absence of protected activity.
Numerous decisions by the Authority have held that the filing and
pursuit of grievances by employees against management, or an agency, are
deemed protected activity under the Statute. It is not disputed, and
the record reflects, that Greene submitted complaints to Moore on behalf
of several employees in early August 1990. Further, on August 30, 1990
he filed seven grievances with Moore protesting certain conditions
which, for the most part, concerned his employment and tasks. By virtue
of his aforesaid conduct, Greene was clearly engaged in protected
activity.
With respect to the motivation behind the refusal and failure to
promote Greene from a GS-07 to a GS-09, Respondent does take issue with
the contention that it was due to his protected activity. It is argued
that Moore did not promote the employee because there was no need for a
full time law enforcement officer. Respondent insists that Moore, in
adhering to this position, was exercising his management right to assign
work.
The difficulty with this contention is that the evidence discloses a
motivation by Moore directly related to Greene's protected activity.
This is revealed by the response given when Greene asked Moore on
January 24, 1991 why he had not been put in for a GS-09 despite the fact
that Greene's supervisor, Fitzmayer, had recommended such action. Moore
responded by saying he may have had time to put Greene in for a
promotion, but he had to waste too much time on Greene's grievances.
While Moore insists there was no need for a full time law enforcement
employee, he also testified that it was not necessary to fill that
position in order to obtain a raise in grade from a GS-07 to a GS-09.
Moreover, Fitzmayer testified that about 70 to 80 percent of Greene's
duties at that time involved law enforcement. It is thus apparent that
while Moore may have felt there was no need for a full time law
enforcement person, such factor did not bar his promoting Greene to a
higher grade. This is borne out by his own testimony as to why he
didn't give Greene a raise:
". . . it really had been a real struggle for all, for them and
myself, in responding to all complaints, grievances."
Further note is taken that, apart from whether a full time enforcement
officer was needed, Moore did promote Greene to a GS-08 months later in
November 1991 after the complaint was issued herein.
The foregoing is persuasive that General Counsel has established a
prima facie case of discrimination because of Greene's protected
activity. This conclusion is warranted in view of Moore's statements
attesting to the fact that he had to waste too much time on Greene's
grievances to promote the employee to a GS-09, that it would further
contribute to Greene's morale problem, /4/ and that it would have been a
struggle to give Greene a raise in "regarding to all of complaints,
grievances." Accordingly, I conclude that Respondent violated section
7116(a)(1) and (2) by failing and refusing to promote Greene from a
GS-07 to a GS-09 because of his protected activity.
(2) The standard for determining whether a statement by management is
violative of the Statute is an objective one. The test is whether,
under the circumstances, a statement tends to coerce or intimidate
employees in the exercise of their rights under section 7102 of the
Statute, or whether the employee could have reasonably drawn a coercive
inference therefrom. Department of the Air Force, Scott Air Force Base,
Illinois, 34 FLRA 956, 962 (1990). In order to find a violation of
section 7116(a)(1), it is not necessary to find other unfair labor
practices or to demonstrate union animus. U.S. Department of Defense,
Department of the Air Force, Headquarters 47th Flying Training Wing
(ATC), Laughlin Air Force Base, Texas, 18 FLRA 142, 163 (1985).
In Bureau of the Census, 41 FLRA 436, 449 (1991), the Authority held
that management's reference to an employee's filing grievances, which
preceded discipline of the individual, was violative of section 7116(
a)(1). It was concluded that an employee could reasonably have drawn a
coercive inference from the reference which itself would tend to
intimidate employees in exercising their statutory right to file
grievances.
Applying this rationale to the instant case, I conclude that Moore's
statements re Greene's filing grievances, would also tend to be
coercive. Stating that an employee has not been promoted or received a
raise because the supervisor had to spend too much time on the
employee's grievances may well result in intimidation. It would
obviously coerce an employee into refraining from exercising his
statutory right to engage in protected activity, i.e. filing grievances
against management. The statements by Moore herein exceed the bounds of
legitimacy, and they would entitle an employee to draw a coercive
inference. I conclude that by virtue of such remarks Respondent
violated section 7116(a)(1) of the Statute.
Having found that Respondent violated section 7116(a)(1) and (2) of
the Statute as aforesaid, it is recommended that the Authority issue the
following Order:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the U.S. Department of Agriculture, Forest Service,
Chattahoochee-Oconee National Forests, Gainesville, Georgia, shall:
1. Cease and desist from:
(a) Refusing or failing to promote Phillip Greene to a GS-09
position because of his protected activities.
(b) Making statements to employees which interfere with,
coerce, or discourage any employee from filing grievances or
exercising rights assured by the Federal Service Labor-Management
Relations Statute.
(c) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of 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 Federal Service
Labor-Management Relations Statute:
(a) Retroactively promote Phillip Greene to a GS-09 as of
January 24, 1991 and make him whole for the loss of pay suffered
by him from that date by reason of the refusal and failure to
promote him due to his protected activities.
(b) Post at its facilities in Gainesville, Georgia, 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 Regional Forester, 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 insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the Atlanta Regional
Office, Federal Labor Relations Authority, 1371 Peachtree Street,
NE, Suite 122, Atlanta, GA 30367, in writing, within 30 days from
the date of this Order, as to what steps have been taken to comply
herewith.
Issued, Washington, DC, April 24, 1992
WILLIAM NAIMARK
Administrative Law Judge
(1) None of the complaints was the subject of a grievance since
management resolved them to the satisfaction of the employees.
(2) This testimony by Greene, straightforward and clearly
recollected, represents the credited version of the conversations which
took place at this meeting. Fitzmayer corroborates the fact that Moore
said he didn't promote Greene because he had to waste time dealing with
Greene's grievances. While not recalling exactly what he said, Moore
testified he didn't give Greene a raise because "it really had been a
real struggle for all, for them and myself, in responding to all of
complaints, grievances."
(3) In its brief General Counsel recites that Respondent promoted
Greene to a GS-08 sometime in November 1991.
(4) Greene had "no morale problem", unless Moore was referring to the
complaints and grievances which Greene filed.
WE WILL NOT refuse or fail to promote Phillip Greene to a GS-09
position because of his protected activities.
WE WILL NOT make statements to employees which interfere with,
coerce, or discourage any employee from filing grievances or exercising
rights assured by the Federal Service Labor-Management Relations
Statute.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL retroactively promote Phillip Greene to a GS-09 as of January
24, 1991 and make him whole for the loss of pay suffered by him from
that date by reason of the refusal and failure to promote him due to his
protected activities.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Atlanta
Regional Office, whose address is: 1371 Peachtree Street, NE, Suite
122, Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.
45 FLRA 1290
45 FLRA NO 130
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio
and AFGE, Council 214, AFL-CIO, Case No. 5-CA-10535 and 5-CA-10754
(Decided September 29, 1992)
7116(a)(1) and (5)
UNFAIR LABOR PRACTICE
MID-TERM BARGAINING
The Respondent filed exceptions to the Judge's determination in Case
No. 5-CA-10754 that the Respondent's refusal to negotiate over midterm
bargaining proposals submitted by the Union concerning an Air Force
Logistics Command-wide safety shoe purchase program violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute).
With regard to Case No. 5-CA-10754, the Authority reviewed the
rulings that the Judge made at the hearing and found that no prejudicial
error was committed. The Authority affirmed the rulings and agreed with
the Judge's conclusion that the Respondent violated section 7116(a)(1)
and (5) of the Statute in Case No. 5-CA-10754.
The Authority rejected the Respondent's argument that the Authority
should have applied the reasoning of the court in Social Security
Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) to find that
unions do not have the right to initiate midterm bargaining under the
Statute, and, therefore, it had no obligation to bargain over the
Union's proposals in this case. The Authority disagreed with the
court's decision in that case and adhere to the Authority's holding in
Internal Revenue Service, 29 FLRA 162 (1987) that the duty to bargain in
good faith imposed by the Statute required an agency to bargain during
the term of a collective bargaining agreement on negotiable
union-initiated proposals concerning matters which are not addressed in
the agreement, unless during the negotiation of the agreement the union
clearly and unmistakably waived its right to bargain about the subject
matter involved. 45 FLRA No. 110 (1992).
Case Nos. 5-CA-10535, 5-CA-10754
AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO
(Charging Party/Union)
September 29, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This consolidated unfair labor practice case is before the Authority
on exceptions to the attached decision of the Administrative Law Judge
filed by the Respondent. The Respondent excepts to the Judge's
determination in Case No. 5-CA-10754 that the Respondent's refusal to
negotiate over midterm bargaining proposals submitted by the Union
concerning an Air Force Logistics Command-wide safety shoe purchase
program violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute).
With regard to Case No. 5-CA-10754, pursuant to section 2423.29 of
the Authority's Rules and Regulations and section 7118 of the Statute,
we have reviewed the rulings of the Judge made at the hearing and find
that no prejudicial error was committed. We affirm the rulings. Upon
consideration of the Judge's decision, the exceptions, the opposition,
and the entire record, we agree with the Judge that the Respondent
violated section 7116(a)(1) and (5) of the Statute in Case No.
5-CA-10754. /*/
The Respondent argues that the Authority should apply the reasoning
of the court in Social Security Administration v. FLRA, 956 F.2d 1280
(4th Cir. 1992) to find that unions do not have the right to initiate
midterm bargaining under the Statute, and, therefore, it had no
obligation to bargain over the Union's proposals in this case. We
respectfully disagree with the court's decision in that case and adhere
to the Authority's holding in Internal Revenue Service, 29 FLRA 162
(1987) that the duty to bargain in good faith imposed by the Statute
requires an agency to bargain during the term of a collective bargaining
agreement on negotiable union-initiated proposals concerning matters
which are not addressed in the agreement, unless during the negotiation
of the agreement the union clearly and unmistakably waived its right to
bargain about the subject matter involved. See U.S. Patent and
Trademark Office, 45 FLRA No. 110 (1992). Further, we note that
although the Respondent cites Department of the Navy, Marine Corps
Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992),
the Respondent has not demonstrated how that decision is relevant to the
instant case. Accordingly, we conclude that the Respondent committed
the unfair labor practices alleged in Case No. 5-CA-10754.
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute (the Statute), the Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, shall:
1. Cease and desist from:
(a) Unilaterally terminating the Commercial Safety Shoe
Purchase Option program for civilian employees at Kelly Air Force
Base without first affording American Federation of Government
Employees, Council 214, AFL-CIO (Council 214), the exclusive
representative of those employees, the opportunity to negotiate
with respect to any proposed changes in such program.
(b) Refusing to meet and negotiate with Council 214 over
midterm initiation of a Command-wide safety shoe purchase option
program.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights assured them by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Upon request, reestablish the Commercial Safety Shoe
Purchase Option program for civilian employees represented by
Council 214 at Kelly Air Force Base, and afford Council 214 the
opportunity to negotiate with respect to any proposed changes in
such program.
(b) Negotiate in good faith with Council 214 about midterm
initiation of a Command-wide safety shoe purchase option program.
(c) Post at Kelly Air Force Base copies of the attached Notice
"A" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the Commander of the Air Force Logistics Command, 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 insure that such Notices are not altered,
defaced, or covered by any other material.
(d) Post at all of its facilities where bargaining unit
employees are located copies of the attached Notice "B" on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the Commander of
the Air Force Logistics Command, 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 insure that such Notices are not altered,
defaced, or covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the Chicago Regional
Office, Federal Labor Relations Authority, Chicago, Illinois, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
WE WILL NOT unilaterally terminate the Commercial Safety Shoe
Purchase Option program for civilian employees at Kelly Air Force Base
without first affording American Federation of Government Employees,
Council 214, AFL-CIO (Council 214), the exclusive representative of
those employees, the opportunity to negotiate with respect to any
proposed changes in such program.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, reestablish the Commercial Safety Shoe
Purchase Option program for civilian employees represented by Council
214 at Kelly Air Force Base, and will afford Council 214 the opportunity
to negotiate with respect to any proposed changes in such program.
(Agency)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Chicago
Regional Office, whose address is: 175 W. Jackson Boulevard, Suite
1359-A, Chicago, IL 60604, and whose telephone number is: (312)
353-6306.
WE WILL NOT refuse to meet and negotiate with American Federation of
Government Employees, Council 214, AFL-CIO (Council 214), the exclusive
representative of affected employees, over midterm initiation of a
Command-wide safety shoe purchase option program.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL negotiate in good faith with Council 214 about midterm
initiation of a Command-wide safety shoe purchase option program.
(Agency)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Chicago
Regional Office, whose address is: 175 W. Jackson Boulevard, Suite
1359-A, Chicago, IL 60604, and whose telephone number is: (312)
353-6306.
Case Nos. 5-CA-10535, 5-CA-10754
AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO
Charging Party
Judith A. Ramey, Esquire, For the General Counsel
Lt. Col. John C. Mantini, Esquire, For the Respondent
Mr. Paul D. Palacio, For the Charging Party
Before: JESSE ETELSON, Administrative Law Judge
The Respondent, Air Force Logistics Command (AFLC), discontinued an
innovative program at one of the Air Force bases over which it has
jurisdiction, without notifying the Charging Party (the Union, or
Council 214). AFLC also withdrew an offer it made to the Union to
negotiate about implementing the same program throughout AFLC. AFLC
then refused the Union's request to put the subject of AFLC-wide
implementation back on the bargaining table and to consider the Union's
proposals on this subject. These actions resulted in two unfair labor
practice complaints. The first, in Case No. 5-CA-10535, alleges that
the unilateral discontinuance of the program violated sections 7116(a)(
1) and (5) of the Federal Service Labor-Management Relations Statute
(the Statute). The second complaint, in Case No. 5-CA-10754, alleges
that AFLC's refusal to negotiate over implementing the program on an
AFLC-wide basis violated the same statutory provisions.
I consolidated these cases when they came on to be heard on December
12, 1991, in Dayton, Ohio. Counsel for the General Counsel and for AFLC
filed post-hearing briefs.
Council 214 is the exclusive representative of a bargaining unit of
approximately 70,000 AFLC civilian employees employed at various sites
including Kelly Air Force Base in San Antonio, Texas (Kelly). Council
214 and AFLC are parties to a Master Labor Agreement (MLA) which
provides, among other things, procedures for midterm bargaining over
certain matters at "Command" (national) level and certain matters at
"activity" (various sites) level. The MLA is supplemented, with respect
to procedures for Union-initiated midterm bargaining, by a side
agreement or memorandum of understanding (MOA) (R Exh. 20).
In June 1989, management at Kelly notified AFGE Local 1617, Council
214's agent for representing bargaining unit employees at Kelly, that
AFLC had approved a "one-year test" of a program to be called the
Commercial Safety Shoe Purchase Option. Under this program, employees
who were required to wear safety shoes (traditionally provided by the
Air Force) would have the option of purchasing them from outside vendors
and be reimbursed, up to a stated amount, by the Air Force. The notice
to Local 1617 was given pursuant to one of the midterm bargaining
provisions of the MLA. The notice invited Local 1617 to "provide any
comments/requests you may have within ten calendar days of receipt of
this notice." (R Exh. 14.) Local 1617 did not respond, and the program
went into effect in July 1989.
Neither the memorandum describing the program nor the accompanying
notice to Local 1617 included any discussion of the steps to be taken,
if any, at the end of the "one-year test," to extend the program, make
it permanent, or terminate it. As it turned out, both management at
Kelly and the employees were satisfied with the program. After a year,
Kelly management recommended that it be adopted for "Air Force wide
application." (R Exh. 15.) Kelly continued to implement it beyond the
announced test period, while Kelly officials waited "for word of
approval or disapproval from higher headquarters" (Tr. 104). The
appropriate authority at Air Force Headquarters approved the program for
all "AFLC activities." This was announced in a letter from Air Force
Headquarters to AFLC dated 5 February 1991. On 22 February, AFLC sent a
letter to its bases, including Kelly, informing them that the program
had been approved for implementation, "based on a one-year test at Kelly
Air Force Base" (GC Exh. 8). For the guidance of the other AFLC bases,
they were provided copies of the program description, with procedures,
used at Kelly.
Then, despite everyone's good intentions, things began to unravel.
AFLC had apparently not considered notifying the Union about the
intended implementation on an AFLC-wide basis. Meanwhile, someone at
AFLC prepared a proposed revision of what appears to be an Air Force or
AFLC regulation, incorporating the approved safety shoe purchase program
(GC Exh. 3, pp. 2-4). The proposed revision found its way to AFLC's
labor relations department, where Labor Relations Specialist Randy L.
Shaw reviewed it and determined that there was an obligation to notify
Council 214. Shaw did so, inviting the Union to submit proposals "over
any bargainable impact and implementation relative to this regulation"
(GC Exh. 3). Council 214's Executive Assistant, Joseph H. Nickerson,
III, promptly requested negotiations over the proposed revision. After
further contacts, Nickerson submitted written proposals on 2 May. The
parties met, sometime in May, and discussed the Union's proposals. (Tr.
20-24, 122-26, GC Exh. 6.)
After the May meeting, Shaw discovered the 22 February letter from
AFLC Headquarters authorizing implementation of the program at the
bases. Shaw consulted with his boss, Sheila Hostler, Chief of the Labor
& Employee Management Relations Division. Hostler wrote a letter to the
appropriate person at AFLC Headquarters, informing him of the obligation
to bargain before making negotiable changes. Hostler requested that the
22 February letter be rescinded "until the bargaining obligation with
AFGE Council 214 has been fulfilled." (R Exh. 6.) This is when
everything really went to pot.
AFLC notified its subordinate bases on 21 May 1991 that the 22
February letter was rescinded and that "the option which allows civilian
personnel to purchase safety shoes from outside vendors is canceled
until further notice" (GC Exh. 10). Kelly management followed this
instruction by issuing a memorandum to a number of its organizational
subdivisions (presumably those to which the safety shoe option program
applied), canceling the option (GC Exh. 11).
On 3 June, AFLC Labor Relations Specialist Shaw wrote to Council 214
Executive Assistant Nickerson, informing him that AFLC was "withdrawing
our bargaining initiative" concerning the proposed revision to the
regulations that would have incorporated the purchase option (GC Exh.
7). Shaw also telephoned Santos S. Cavalos, Chief of the Labor
Relations Section at Kelly. Shaw told him that the AFLC-wide program
was not going to be implemented, that the bargaining initiative had been
withdrawn, and that, therefore, the "test program" at Kelly had to be
terminated (Tr. 127, 128). On 6 June, Cavalos so informed Local 1617
(GC Exh. 12). The program was, in fact, terminated at Kelly around that
time.
Randy Shaw, on receiving a copy of Cavalos' letter to Local 1617,
informed Cavalos that there might be a bargaining obligation associated
with the cancellation of the program at Kelly, depending on how the
program had been implemented. Shaw told Cavalos he was not to
understand that AFLC was directing him to rescind the test program at
Kelly without fulfilling "any required bargaining obligation." (R Exh.
2.) Cavalos testified that he had determined, on his own, that
bargaining was not required.
Nickerson spoke to Shaw and Labor Relations Chief Hostler several
times during the next two months. It became clear that AFLC would not
"entertain any negotiations for safety shoes" (Tr. 73, 78-79).
Nickerson then prepared a letter to Hostler. The letter (GC Exh 14),
dated 29 July, stated in pertinent part:
Council 214 strongly disagrees with your decision and your right
to withdraw your bargaining initiative on the safety shoes issue.
We are requesting that you reconsider your withdrawal
initiative and return to the bargaining table to complete
negotiations.
If necessary, consider this Council 214 letter our demand to
bargain the Safety Shoes issue. Our proposals are attached.
The proposals Nickerson attached consisted of six proposals previously
submitted in May and three additional proposals.
Randy Shaw answered Nickerson's letter on 1 August. He responded
that AFLC's position was not changed and that there was no bargaining
initiative relative to the safety shoe issue on the table. His letter
concludes: "Article 25 of the MLA covers all protective equipment for
AFLC employees including safety shoes." (GC Exh. 15.)
A. Case No. 5-CA-10535: Unilateral Discontinuance at Kelly
Case No. 5-CA-10535 presents the issue of whether AFLC was required
to notify the Union and afford it the opportunity to bargaining about
discontinuing the purchase option program at Kelly in June 1991. /2/
AFLC concedes that the subject of providing the purchase option is
negotiable. Nor did it seek before me to limit any bargaining
obligation to "impact and implementation" negotiations.
What AFLC does argue here is that any bargaining obligation over this
"test program" was met when Local 1617 was given the opportunity to
negotiate over its implementation in 1989 and chose not to exercise it.
This "waiver," as AFLC puts it, extended to any right the Union had to
bargain about the program, under the theory that: "The change in
conditions of employment occurred when the program was implemented, not
when it was terminated."
The basis for this interesting theory is that, being a "test
program," the purchase option had by definition a limited life. AFLC
claims, therefore, to have implicitly reserved the right to terminate
the program any time after its stated term, absent a negotiated
agreement (the opportunity for which the Union waived) limiting AFLC's
right to terminate.
While I do not regard the matter as free from doubt, I do not think
that the fact that the program was originally implemented as a "test
program" does as much for AFLC's position as AFLC claims. It is true
that a test program cannot ordinarily be expected to continue
indefinitely as a test program. But by the same token, its continuance
beyond its stated term would reasonably be taken to mean, at a certain
point and absent any indication to the contrary, that the test period
was over and that the program had achieved a more or less permanent
status.
What were the indications here? As noted above, the program as
described in its implementing memorandum provided neither for automatic
termination nor for extension of the "test." Implicitly, then, while the
program could have been (and was) continued in effect without further
action, some affirmative action was needed in order to terminate it.
The position of the General Counsel is that the Union was entitled to
negotiate about the decision to terminate it -- that is -- that the
purchase option had become a condition of employment which AFLC could
not change without fulfilling its normal bargaining obligation. See
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9
(1981).
That the program was implemented and presented to the Union as a
"one-year test" meant that the Union, by its inaction, can be deemed to
have consented to a one-year test of the program. It is at least
arguable that such consent should be construed to encompass AFLC's
implied right to terminate the program at the end of the test period,
upon its own finding that the program had failed the test. It is even
arguable that the Union consented to AFLC's right to terminate it, at
the end of the year, for no reason at all.
It is difficult, however, to stretch the Union's consent much further
than that. For example, if the Union can be said to have consented to a
one-year test, that did not necessarily authorize AFLC to terminate it
unilaterally after six months. Nor did it free AFLC to extend it
indefinitely by inaction and then, years later, declare it terminated by
virtue of its original "test" status. As stated above, at a certain
point it should be deemed to have survived the test. Was that point
reached here?
That specific question is being asked here in the context of the more
general question of whether the Union waived its right to bargain over
the termination. The answer, then, must be consistent with the well
established principle that a waiver of the right to bargain cannot be
effective unless it is clear and unmistakable. Scott Air Force Base,
supra. It would be one thing to argue that the "one-year test" did not
necessarily end at the stroke of midnight on the last day of the test's
year. It might not be too far-fetched to conclude that the Union's
consent, although based here on implication and not express waiver, gave
the green light to a test of approximately a year. Thus, the program
might retain its "test" status during a brief extension beyond the first
year, while the test "results" were compiled and reviewed. But that is
not what happened here.
For one thing, the program remained in effect for almost a year after
the expiration of the "test" year. For another, the program had clearly
proved satisfactory at Kelly. The Union, when it consented to the
one-year test, could reasonably have assumed that in those circumstances
the program would continue until its discontinuance was negotiated. The
Union would not necessarily have anticipated that the question of the
program's continuance at Kelly would become entangled with the issue of
making it an AFLC-wide program (which arose only after it had
successfully passed its "test" at Kelly) or that the test "results"
might be set aside a year after the test period had expired. The only
clear and unmistakable waiver here was to permit unilateral
implementation of the "one-year test" as originally presented and
described. The program that was terminated in June 1991 was one that
had acquired the status of a condition of employment: it had been
followed consistently, after its "test" period had expired, by both
parties and for a significant period of time. Cf. U.S. Department of
Labor, Washington, D.C., 38 FLRA 899, 908 (1990) (describing the
criteria for establishing a condition of employment through past
practice).
B. Case No. 10754: Refusal to Bargain in Response to Union's
Request for Midterm Negotiations
The issue here is whether Council 214 made a proper and effective
request to open midterm negotiations over implementing an AFLC-wide
safety shoe purchase program. Here again, AFLC concedes that the
subject matter of the request is negotiable. /3/ Nor is there a claim
that any provision in the parties' MLA, by virtue of its mention of
safety shoes, either waives the Union's right or exhausts AFLC's
obligation to bargain about this subject. /4/
AFLC's main contention is that Council 214's request to negotiate
about the safety shoe purchase option does not conform to the
requirements the parties agreed to in the MOA supplementing their MLA,
which covers "Procedures for Union Initiated Mid-term Bargaining." AFLC
did not contest, in its original brief, that under Authority precedent
it has a general obligation to bargain over union-initiated proposals
for midterm changes. However, in a Supplemental Submission, AFLC
submitted, for my "consideration," the decision of the Fourth Circuit in
Social Security Administration v. FLRA, 956 F.2d 1280 (1992), in which
the court rejected the Authority's view about the requirement for
midterm bargaining for union-initiated changes. I am bound by the
Authority's view and must reject this defense.
The main issue, then, is the adequacy of Council 214's request to
negotiate. It was AFLC, of course, that first invited midterm
negotiations concerning a revision of the regulations that would permit
reimbursed purchases of safety shoes. /5/ After AFLC withdrew its
"bargaining initiative," Council 214 presented its own initiative while
protesting the withdrawal of AFLC's. The Union plainly was attempting
to put the safety shoe purchase issue back on the table -- to "return to
the bargaining table to complete negotiations." The Union went further,
however. Possibly anticipating and seeking to circumvent any issue as
to AFLC's right to withdraw its prior initiative, the Union stated: "If
necessary, consider this . . . letter our demand to bargain the Safety
Shoes issue. Our proposals are attached."
AFLC refuses to recognize this "demand to bargain" as a proper
invocation of the Union's right to initiate midterm bargaining because:
(1) the demand does not identify itself as a request to initiate midterm
bargaining and (2) it does not "identify" an implementation date. These
omitted "identifications" are said to be prerequisites to
Union-initiated midterm bargaining under the pertinent MOA. AFLC cites
in particular the following parts of the MOA:
1. When a bargaining obligation is generated by AFGE Council
214 at the Command level, the following procedures will apply:
a. AFGE Council 214 will notify, in writing, the AFLC Labor
Relations Officer of the intended changes in conditions of
employment. A reasonable time period/date following the
notification will be identified as the implementation date. The
Labor Relations Officer or designee may request and be granted a
meeting to discuss the change.
3. It is understood by the parties that the intent of this
agreement is to use in reverse the procedures found in Sections
33.02 and 33.03 of the MLA when AFGE initiates bargaining except
where otherwise changed in this agreement.
What Council 214 did here was to notify AFLC's Chief of labor
relations, in writing, that it wished to negotiate over desired changes
in conditions of employment that were spelled out in the accompanying
proposals. How this letter failed to identify itself as a request to
bargain over a Union-initiated proposal for a change is, as the General
Counsel argues, "difficult to fathom." If the letter's first defect is
its omission of the word "midterm," the fact that the requested
negotiations would be midterm was perfectly evident. Neither the MOA
nor common sense required the Union to recite the obvious. Nor did the
fact that the subject over which the Union sought to negotiate had first
been proposed and then withdrawn by management make any less clear that
the Union was now exercising its right to initiate negotiations.
On the other hand, it is at least literally true that the MOA
requires that a "reasonable time period/date following the notification
will be identified as the implementation date." The purpose of such a
requirement, in the case of a Union-initiated change, is obscure. Its
presence in the MOA almost certainly is accounted for by the fact that,
as set forth in paragraph "3." of the MOA, the procedures for
Union-initiated midterm bargaining were intended to track, in reverse,
the procedures in the Sections 33.02 and 33.03 of the MLA. Those
sections deal with negotiations over management-initiated midterm
changes. In the case of such changes, identification of a target
implementation date serves understandable purposes in terms of
scheduling and moving ahead with the bargaining process. In the case of
Union-initiated changes, a desired implementation date could serve,
ordinarily, only as an addition to the Union's wish list; there are no
situations in the Federal sector that come to mind where a union has the
power to implement changes on its own once the desired implementation
date has arrived.
To the extent that AFLC is arguing that the Union's omission of an
implementation date misled management into failing to realize that the
Union was invoking the MOA's procedures, I find that contention to be
unreasonable. As stated above, the important thing is that the Union
clearly indicated that it sought to negotiate over changes it wished to
make. It made its request midterm. The Union was entitled to request
(midterm) negotiations, and, in circumstances recognized under Authority
precedent, AFLC was obliged to negotiate irrespective of any contractual
obligation to negotiate. If, as AFLC argues, the contract restricts the
circumstances under which it must engage in midterm negotiations, that
is a different matter.
AFLC's can therefore resist its statutory obligation to negotiate
only by showing that the Union contractually gave AFLC license to ignore
any request to negotiate that did not include an implementation date.
In my view, however, that represents a rather strained reading of the
requirement that the Union specify such a date. As noted, the
requirement appears to be a relatively insignificant (possibly bordering
on inadvertent) addition to the outline of procedures to be followed for
requesting midterm negotiations. Omission of the date would present no
apparent prejudice to AFLC, nor has any claim of prejudice been made
except as an adjunct to the rejected defense that AFLC was misled. It
is the sort of omission that could easily be cured by a request from
AFLC for a proposed implementation date. It need not delay bargaining.
In fact, the purpose of identifying an implementation date was at least
partly served here by the Union's suggestion, in the letter requesting
negotiations, of a date to begin bargaining.
All of this persuades me that, whatever else might be said about the
omission, it is not even reasonable to argue that it was jurisdictional
-- that is -- that in the contemplation of the MOA it relieved AFLC of
the duty to comply with the request to negotiate. Thus, AFLC's
contention fails whether one applies the Authority's "clear and
unmistakable waiver" test, the "differing and arguable interpretations"
test recently suggested by the court in Internal Revenue Service v.
FLRA, No. 91-1247 (D.C. Cir. May 5, 1992), or the "covered by the
contract" test adopted by the same court in Department of the Navy v.
FLRA, No. 91-1211, 1992 U.S. App. LEXIS 7593 (D.C. Cir. April 24, 1992).
C. Summary and Remedy
I conclude that AFLC violated section 7116(a)(1) and (5) of the
Statute by unilaterally discontinuing the safety shoe purchase program
at Kelly Air Force Base and by refusing to negotiate, in response to
Council 214's request, over Union-initiated midterm changes that would
create such a program AFLC-wide. As an affirmative remedy, I find it
appropriate to recommend a restoration of the status quo ante at Kelly.
An issue has arisen as to the scope of posting of the usual notices.
Although AFLC has chosen not to dispute on the merits its responsibility
for the violation involving the program at Kelly, the credible evidence
convinces me that AFLC did, at least for the most part, leave it to the
local labor relations staff at Kelly to decide whether to bargain.
Since the unilateral change violation affected only Kelly in any event,
I do not think that my consolidation of these cases should affect the
scope of the posting and I shall recommend a separate order for the
Kelly violation, to be posted at Kelly only. As AFLC is found to be
responsible, however, the signature of its commander is necessary. The
refusal to negotiate on Council 214's request, on the other hand,
affected all of AFLC's bargaining unit employees and must be posted
AFLC-wide.
I recommend that the Authority issue the following order.
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute (the Statute), the Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, shall:
1. Stop:
(a) Unilaterally terminating the Commercial Safety Shoe
Purchase Option program for civilian employees at Kelly Air Force
Base without first affording American Federation of Government
Employees, Council 214, AFL-CIO (Council 214), the exclusive
representative of those employees, the opportunity to negotiate
with respect to any proposed changes in such program.
(b) Refusing to meet and negotiate with Council 214 over
midterm initiation of a Command-wide safety shoe purchase option
program.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights assured them by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Upon request, reestablish the Commercial Safety Shoe
Purchase Option program for civilian employees represented by
Council 214 at Kelly Air Force Base, and afford Council 214 the
opportunity to negotiate with respect to any proposed changes in
such program.
(b) Negotiate in good faith with Council 214 about midterm
initiation of a Command-wide safety shoe purchase option program.
(c) Post at Kelly Air Force Base copies of the attached Notice
"A" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the Commander of the Air Force Logistics Command, 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 insure that such Notices are not altered,
defaced, or covered by any other material.
(d) Post at all of its facilities where bargaining unit
employees are located copies of the attached Notice "B" on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the Commander of
the Air Force Logistics Command, 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 insure that such Notices are not altered,
defaced, or covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the Chicago Regional
Office, Federal Labor Relations Authority, Chicago, Illinois, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
Issued, Washington, DC, May 15, 1992
JESSE ETELSON
Administrative Law Judge
(*) As no exceptions were filed to the Judge's findings, conclusions
and recommended Order in Case No. 5-CA-10535, we adopt this aspect of
the consolidated decision without further discussion. See 814th Combat
Support Group, Beale Air Force Base, California, 43 FLRA 1173, 1174 n.
1(1992).
(1) The facts are essentially undisputed. They are, however, rather
convoluted, the parties having followed a labyrinthine path to the
courthouse door. I shall attempt to simplify without omitting relevant
twists on the path.
Whoever attempts to decipher the record will be confused by the bound
volume of Respondent's exhibits. For reasons that are no longer clear
if they ever were, these exhibits were placed in the record in reverse
numerical order. Further, someone misnumbered R Exh. 20. It is bound
as the first of two R Exhibits 1. (It is the document entitled
"PROCEDURES FOR UNION INITIATED MID-TERM BARGAINING.") The second,
properly numbered R Exh. 1, was rejected. I cannot explain at all how
the exhibit numbered R Exh. 4 got into the record, but its presence in
the bound volume of exhibits is harmless because it duplicates part of
GC Exh. 7.
(2) AFLC has chosen not to make an issue of whether the bargaining
obligation, if any, and any responsibility for violating it, was at the
AFLC or the "activity" level, except for the question of where to post
remedial notices (Tr. 15).
(3) The negotiability of the Union's specific proposals was not
litigated. In these circumstances I have no jurisdiction to rule on
them. See U.S. Department of the Treasury, Internal Revenue Service,
Louisville District, Louisville, Kentucky, 42 FLRA 137, 143, 153-55
(1991). That decision does not, however, bring me much closer to an
understanding of what it takes to raise such negotiability issues in an
ULP proceeding. Cf. U.S. Department of the Army, Fort Stewart Schools,
Fort Stewart, Georgia, 37 FLRA 409 (1990).
(4) Such an issue was raised in AFLC's Answer (GC Exh. 1(ee)) but
apparently has been abandoned. See Tr. 70-72.
(5) That initiative was phrased in terms of "impact and
implementation" bargaining. However, no dispute remains as to the
negotiability of the "substance" of the program.
WE WILL NOT unilaterally terminate the Commercial Safety Shoe
Purchase Option program for civilian employees at Kelly Air Force Base
without first affording American Federation of Government Employees,
Council 214, AFL-CIO (Council 214), the exclusive representative of
those employees, the opportunity to negotiate with respect to any
proposed changes in such program.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, reestablish the Commercial Safety Shoe
Purchase Option program for civilian employees represented by Council
214 at Kelly Air Force Base, and will afford Council 214 the opportunity
to negotiate with respect to any proposed changes in such program.
(Agency)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Chicago
Regional Office, whose address is: 175 W. Jackson Boulevard, Suite
1359-A, Chicago, IL 60604, and whose telephone number is: (312)
353-6306.
WE WILL NOT refuse to meet and negotiate with American Federation of
Government Employees, Council 214, AFL-CIO (Council 214), the exclusive
representative of affected employees, over midterm initiation of a
Command-wide safety shoe purchase option program.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL negotiate in good faith with Council 214 about midterm
initiation of a Command-wide safety shoe purchase option program.
(Agency)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Chicago
Regional Office, whose address is: 175 W. Jackson Boulevard, Suite
1359-A, Chicago, IL 60604, and whose telephone number is: (312)
353-6306.
45 FLRA 1282
45 FLRA NO 129
U.S. Dept. of the Navy, Military Sealift Command, Atlantic, Bayonne,
New Jersey and Marine Engineers Beneficial Association, National
Maritime Union, Unlicensed Division, District No. 1 (Bass, Arbitrator),
Case No. 0-AR-2258 (Decided September 29, 1992)
7122(a)
7106(a)(2)(D)
5 U.S.C. Section 5596
ARBITRATION EXCEPTIONS
MGT'S RIGHT TO CARRY OUT ITS MISSION IN AN EMERGENCY
THE BACKPAY ACT
The Arbitrator awarded compensation to employees to remedy the
Agency's failure to provide them adequate living accommodations. The
Authority concluded that this case must be remanded to the parties for
resubmission to the Arbitrator.
As a preliminary matter, the Authority rejected the Union's
contention that the Agency's exceptions should be dismissed because they
raised issues which were not presented to the Arbitrator. The Authority
rejected the Agency's argument that the award was inconsistent with its
right under section 7106(a)(2)(D) to carry out its mission in an
emergency because the Arbitrator's interpretation of "adequate living
accommodations" in section 1a of the parties' agreement precluded it
from acting in an emergency. The Authority noted that nothing in
section 1a, as interpreted by the Arbitrator, precluded the Agency from
taking whatever actions it found necessary to fulfill its mission in an
emergency.
The Authority decided to remand this case to the parties for
resubmission to the Arbitrator for clarification of the award. The
Authority noted that the Arbitrator satisfied one of the three
requirements of the Back Pay Act. However, the Authority concluded that
it was unable to determine whether the two remaining requirements had
been satisfied.
Case No. 0-AR-2258
U.S. DEPARTMENT OF THE NAVY, MILITARY SEALIFT COMMAND, ATLANTIC,
BAYONNE, NEW JERSEY
(Agency)
MARINE ENGINEERS BENEFICIAL ASSOCIATION, NATIONAL MARITIME UNION,
UNLICENSED DIVISION, DISTRICT NO. 1
(Union)
September 29, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Mary P. Bass filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Union filed an
opposition to the Agency's exceptions.
The Arbitrator awarded compensation to employees to remedy the
Agency's failure to provide them adequate living accommodations. For
the reasons discussed below, we conclude that this case must be remanded
to the parties for resubmission to the Arbitrator.
The Union filed a grievance alleging that living accommodations for
certain unit employees aboard the USNS COMFORT, an Agency hospital ship,
were inadequate during the Persian Gulf crisis. When the matter was not
resolved, it was submitted to arbitration. The issue before the
Arbitrator was:
whether the (Agency) violated the collective bargaining agreement
. . . between the parties with respect to the payment of quarters
allowance for (employees) who were required to live . . . aboard
the USNS COMFORT during the period August 9, 1990 through April
15, 1991, and if so, what is the appropriate remedy.
Award at 1-2 (footnote omitted).
The Arbitrator determined that the living accommodations aboard the
USNS COMFORT "were not adequate" within the meaning of section 1a of the
relevant article of the parties' agreement. /1/ Id. at 9. Accordingly,
she concluded that the Agency violated that section of the contract and
she granted the grievance.
As for the remedy, the Arbitrator noted the Union's argument that an
"appropriate remedy is a quarters allowance." Id. at 7. More
particularly, the Union requested, as an "appropriate quarters
allowance," an award of "$40 per diem, the allowance provided in the
1990-1994 agreement between the Union and various dry cargo companies .
. . ." Id. at 7-8. As "fall back" positions, the Union requested either
$20 per day for each affected employee or the "per diem $13 Room
Allowance provided for in their Agreement . . . ." Id. at 8. The Agency
argued that, "no remedy (was) available irrespective of whether the
accommodations . . . were adequate, because no remedy is provided under
the contract." Id.
The Arbitrator concluded, at the outset of her discussion of an
appropriate remedy, that section 2 of the relevant article was
"inapplicable" here. Id. at 10. In this connection, the Arbitrator
found that, with respect to periods when a ship is at sea, including the
periods involved in this case, section 2 encompasses "only claims
relating to noise due to repairs(,)" an issue that was "not a claim" in
this case. Id. However, the Arbitrator rejected the Agency's claim
that references in the grievance to section 2(a) and (b) had a
"significant impact" in the case. Id. Although the Arbitrator found
that "neither the violation alleged nor the remedy sought (was) based on
Section 2(,)" the Arbitrator also found that the Agency was not "misled"
by the references in the grievance, which were "nothing more than the
attempt to meet a filing requirement." Id. at 11.
The Arbitrator also rejected the Agency's argument that the parties'
agreement to specify remedies in section 2 for certain situations
indicated their intention to exclude remedies for violations of section
1a. According to the Arbitrator:
The specific remedial provisions of Section 2a. and b. are
obviously intended as "liquidated damages" clauses for commonly
occurring problems. There is no statement in Section 2 or any
implication therein that inadequacies in living accommodations
arising in violation (of) Section 1 and not mentioned in Section 2
are to go unremedied.
Id. On a related point, the Arbitrator stated that the parties'
agreement to arbitrate disputes such as the one in this case "means that
the formulation of remedies for violations of the Agreement was
intended(.)" Id.
The Arbitrator concluded as follows:
The remaining issue is what the remedy should be. The remedy
must take into account the fact that the men were not
out-of-pocket for alternative quarters. This makes the $40 per
diem the Union seeks inappropriate, in addition to the fact that
the figure comes from an Agreement to which the Employer is not a
party. The Employer suggests in its brief that if the grievance
is granted, the per diem room allowance rate called for in the
Agreement, $13, is appropriate. . . .
I find that the appropriate rate is the $13 room allowance rate
negotiated in the Agreement. This figure was arrived at in 1979.
Cost of living increases since then dilute this figure to the
extent that it now constitutes an appropriate make-whole remedy
for the . . . personnel assigned to open berthing area on the USNS
COMFORT.
Id. at 12. Accordingly, as her award, the Arbitrator directed the
Agency to provide each affected employee "the amount of $13 per diem .
. . for each day of . . . assignment during the period August 9, 1990
through April 15, 1991." Id.
The Agency contends that the award is inconsistent with the Back Pay
Act, 5 U.S.C. Section 5596(b), because the Arbitrator "did not find that
'but for' the (A)gency's violation of the agreement, the grievants would
have received the compensation in question." Exceptions at 12. The
Agency asserts that the Arbitrator's remedy is "not based on a
contractual requirement that employees receive compensation when
'adequate' living quarters are not provided" but, rather, on the
Arbitrator's "conception of her general remedial powers under the
arbitration clause of the parties' . . . agreement." Id. at 11.
Further, the Agency argues that the award directly interferes with
management's right under section 7106(a)(2)(D) of the Statute to take
whatever actions may be necessary to carry out the Agency mission during
emergencies. The Agency contends that the "only way the (A) gency could
have improved living accommodations to meet the (A) rbitrator's
conception of the contractual requirement at issue would have been to
withhold the COMFORT from (duty) while modifications were made." Id. at
18. Finally, the Agency asserted that the award is not "valid as an
enforcement of an 'appropriate arrangement'" under section 7106(b)(3).
Id. at 19.
The Union asserts that the Agency's arguments under the Back Pay Act
and section 7106(a)(2)(D) and (b)(3) of the Statute "must be disregarded
because they were not raised before the Arbitrator." Opposition at 3.
The Union also asserts that the award is not contrary to the Back Pay
Act. The Union contends that, "'but for' (the Agency)' s failure to
abide by the collective bargaining agreement," the grievants either
"would have had adequate living conditions or the contractual quarters
allowance." Id. at 8.
The Union also argues that the award is not inconsistent with section
7106(a)(2)(D) of the Statute because the Agency was not prevented from
dispatching the USNS COMFORT to the Persian Gulf on schedule.
Alternatively, the Union asserts section 1a of the parties' agreement
constitutes an appropriate arrangement under section 7106(b)( 3) of the
Statute. Finally, the Union requests that the Authority award it
attorney fees.
We reject the Union's contention that the Agency's exceptions should
be dismissed because they raise issues that were not presented to the
Arbitrator. The exceptions address whether the Arbitrator's award is
deficient under section 7122(a) of the Statute and, as such, could not
have been presented to the Arbitrator. Compare U.S. Department of
Veterans Affairs, National Memorial Cemetery of the Pacific and
International Association of Machinists and Aerospace Workers, Hawaii
Federal Lodge 1998, 45 FLRA No. 116, slip op. at 6 (1992) (exception
denied where issue was raised by the union for the first time in its
exceptions to the award). Accordingly, we will consider the Agency's
exceptions.
We reject, at the outset, the Agency's argument that the award is
inconsistent with its right under section 7106(a)(2)(D) to carry out its
mission in an emergency because the Arbitrator's interpretation of
"adequate living accommodations" in section 1a of the parties' agreement
precludes it from acting in an emergency. Nothing in section 1a, as
interpreted by the Arbitrator, precludes the Agency from taking whatever
actions it finds necessary to fulfill its mission in an emergency. See
National Treasury Employees Union, Chapter 22 and Department of the
Treasury, Internal Revenue Service, 29 FLRA 348, 349 (1987) ("only
proposals which either directly interfere with agency action or prevent
the agency from taking the emergency action are inconsistent with
section 7106(a)(2)(D)"). As we find no direct interference with
management's right under section 7106(a)(2)(D), it is unnecessary to
address the Agency's argument concerning section 7106( b)(3).
Under the Back Pay Act, /2/ an arbitrator may award pay, allowances,
or differentials if the arbitrator determines that: (1) the aggrieved
employee was affected by an unjustified or unwarranted personnel action;
(2) the personnel action directly resulted in the withdrawal or
reduction of the grievant's pay, allowances, or differentials; and (3)
but for such action, the grievant otherwise would not have suffered the
withdrawal or reduction. U.S. Department of Health and Human Services,
Family Support Administration, Washington, D.C. and National Treasury
Employees Union, Local 250, 42 FLRA 347, 359 (1991).
In this case, the Arbitrator satisfied the first requirement of the
Back Pay Act when she found that the Agency violated the parties'
agreement by failing to provide adequate living accommodations aboard
the USNS COMFORT. See U.S. Department of the Air Force, Tinker Air
Force Base, Oklahoma and American Federation of Government Employees,
Local 916, 42 FLRA 1342, 1347 (1991). However, we are unable to
determine whether the two remaining requirements have been satisfied.
In this regard, the Arbitrator appears to have concluded that the $13
room allowance provided in section 2 of the relevant article does not
apply in this case. As noted above, the Arbitrator specifically stated
that "neither the violation alleged nor the remedy sought is based on
Section 2." Award at 11. The Arbitrator also stated, in this
connection, that the "'liquidated damages'" set forth in section 2
applied to the "commonly occurring problems" set forth in that section,
including lack of heat or repair-related noise. Id. If section 2 does
not apply and affected employees were not entitled, in the circumstances
of this case, to the $13 allowance specified therein, then the Agency's
actions would not directly result in the withdrawal or reduction of the
affected employees' allowances. In this situation, an award of such an
allowance would not satisfy the second requirement of the Back Pay Act.
For example, National Association of Government Employees, Local R1-109
and Veterans Administration Medical Center, Newington, Connecticut, 35
FLRA 206, 211 (1990).
On the other hand, the Arbitrator appears to have concluded that, by
virtue of the Agency's actions in this case, affected employees were
entitled to the $13 allowance specified in section 2. Indeed, according
to the Arbitrator, the Agency itself suggested that the "allowance rate
called for in the Agreement, $13, is appropriate." Award at 12.
Moreover, the Arbitrator specifically stated that the "appropriate"
remedy was the "$13 room allowance rate negotiated in the Agreement."
Id. If affected employees were entitled, under the parties' agreement,
to the $13 allowance specified in section 2, then the connection between
the Agency's violations of the agreement and a reduction in affected
employees' allowances would be established. For example, Veterans
Administration Medical Center, Palo Alto, California and American
Federation of Government Employees, Local 2110, 36 FLRA 98, 109 (1990).
As we are unable to determine the basis of the Arbitrator's award, we
will remand this case to the parties for resubmission to the Arbitrator
for clarification of the award. For example, American Federation of
Government Employees, Local 916 and U.S. Department of the Air Force,
Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 44
FLRA 247, 251 (1992). /3/
The award is remanded to the parties for further action consistent
with this decision.
(1) The article, entitled "Quarters, Equipment, and Living
Conditions," provides, in relevant part:
Section 1. QUARTERS & EQUIPMENT
a. Adequate living accommodations shall be provided the . . .
(p)ersonnel covered by the Agreement . . . .
Section 2. ROOM AND MEAL ALLOWANCE
When board is not furnished as required, unlicensed members of the
crew shall receive the following allowances:
Room allowance $13.00
a. Cash in lieu of quarters: When other comparable quarters have
not been furnished in kind, room allowance shall be paid: (1)
When the ship is in port. (a) When heat is not furnished.
(2) When the ship is at sea.
(a) When repair work . . . is performed the following shall
apply: Except for forward of 100 feet and aft of 100 feet of the
ship's house, work causing noise . . . shall not commence until
1100. If such work is performed before 1100, quarters allowance
in the amount of $6.50 shall be paid to those men who stood
watches between midnight and 0800 and who present claims . . . .
Award at 6-7.
(2) Although the parties disagree over whether the requirements of
the Back Pay Act have been satisfied in this case, they do not dispute
that the Act applies to the compensation awarded by the Arbitrator.
Moreover, the Union does not assert any other authority, and we are
aware of none, which would authorize the Arbitrator to award
compensation for inadequate quarters.
(3) Attorney fees are authorized in cases such as this one only in
conjunction with an award of pay, allowances, or differentials.
American Federation of Government Employees, Local 216, National Council
of EEOC Locals and Equal Employment Opportunity Commission, 42 FLRA 319,
320 (1991). Moreover, where the Back Pay Act requirements are met, the
arbitrator is the appropriate authority to resolve a request for
attorney fees. U.S. Department of the Army, White Sands Missile Range,
White Sands Missile Range, New Mexico and National Federation of Federal
Employees, Local 2049, 38 FLRA 1532, 1538 (1991). Accordingly, we do
not address further the Union's request for attorney fees.
45 FLRA 1280
45 FLRA NO 128
U.S. Dept. of Housing and Urban Development, Washington, D. C. and
AFGE, Local 476 (Jaffe, Arbitrator), Case No. 0-AR-2335 (Decided
September 29, 1992)
7122(a)
ARBITRATION EXCEPTIONS
TIMELINESS
The Authority found that the Union's exceptions were not filed within
the prescribed time limit. The Authority noted that the time limit for
filing exceptions may not be extended or waived by the Authority,
therefore, the Union's exceptions were dismissed.
The Authority noted that the time limit for filing exceptions to an
arbitration award is 30 days beginning on the date the award is served
on the filing party. 5 C.F.R. Section 2425.1(b). The date of service
is the date the arbitration award is deposited in the U.S. mail or is
delivered in person. 5 C.F.R. Section 2429.27(d). If the award is
served by mail, 5 days are added to the period for filing exceptions to
the award. 5 C.F.R. Section 2429.22. The time limit may not be
extended or waived by the Authority. 5 C.F.R. Section 2429.23(d).
Case No. 0-AR-2335
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, WASHINGTON, D.C.
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 476
(Union)
September 29, 1992
The Union has filed exceptions to the award of Arbitrator Ira F.
Jaffe in the above-captioned case. On September 2, 1992, the Authority
directed the Union to show cause why its exceptions should not be
dismissed as untimely filed. The Union filed a timely response to the
Authority's Order. For the reasons set out below, the Union's
exceptions must be dismissed.
The time limit for filing exceptions to an arbitration award is 30
days beginning on the date the award is served on the filing party. 5
C.F.R. Section 2425.1(b). The date of service is the date the
arbitration award is deposited in the U.S. mail or is delivered in
person. 5 C.F.R. Section 2429.27(d). If the award is served by mail, 5
days are added to the period for filing exceptions to the award. 5
C.F.R. Section 2429.22. The time limit may not be extended or waived by
the Authority. 5 C.F.R. Section 2429.23(d).
The Union has furnished a letter from the Arbitrator dated September
14, 1992, stating that he sent his award in the above-captioned case to
the parties by first class mail on July 21, 1992. Accordingly, the
30-day period for filing exceptions to the award began on July 21, 1992
and expired on August 19, 1992. 5 C.F.R. Section 2425.1(b). Because
the award was served by mail, 5 additional days were added to the due
date. 5 C.F.R. Section 2429.22. Therefore, any exception to the award
had to be either postmarked by the U.S. Postal Service or received in
person at the Authority no later than August 24, 1992, in order to be
timely filed. See, e.g., National Federation of Federal Employees,
Council of Veterans Administration Locals and U.S. Department of
Veterans Affairs, 45 FLRA 38 (1992).
The Union's exceptions, although dated August 24, 1992, were filed
(postmarked) on August 25, 1992. The Union has failed to provide any
information which would show that its exceptions were timely filed.
The Union's exceptions were not filed within the prescribed time
limit. As the time limit for filing exceptions may not be extended or
waived by the Authority, the Union's exceptions are dismissed.
For the Authority.
Alicia N. Columna
Director, Case Control Office
45 FLRA 1264
45 FLRA NO 127
District No. 1, Marine Engineers Beneficial Association/National
Maritime Union, Licensed Division, Panama Canal Area and Panama Canal
Commission, Case No. 0-NG-2032 (Decided September 24, 1992)
7105(a)(2)(E)
5 U.S.C. Section 8101
20 C.F.R. Section 10.303
22 U.S.C. Section 3649
NEGOTIABILITY DETERMINATION
MATTER PROVIDED FOR BY FEDERAL LAW
DISABLED EMPLOYEES
PAY RETENTION
FEDERAL EMPLOYEES COMPENSATION ACT (FECA)
PANAMA CANAL TREATY
This case concerned three proposals, which were made in the
alternative, concerning pay retention for disabled employees who were
reassigned to lower-paid jobs. The Authority found the proposals to be
negotiable.
Proposal 1 required that employees who were reassigned to a
lower-paid position because of disability would continue to receive the
level of pay that they were receiving for the positions that they
occupied prior to the reassignments. Thus, the proposal concerned the
rate of pay which would be given to a reassigned employee.
The Authority rejected the Agency's claims that Proposal 1 was
inconsistent with FECA and 20 C.F.R. Section 10.303 or that it concerned
a matter specifically provided for by Federal Employees Compensation Act
(FECA). The Authority noted that the above authorities did not address
the subject of this proposal, that is, the pay that would be provided to
a partially disabled employee who is accommodated by reassignment to a
different position. The Authority noted that in its view, the
determination of pay under those circumstances was a separate or
discrete issue from that of compensation for disability. Thus, the
Authority concluded that Proposal 1 did not attempt to cover the same
matters covered by FECA. The Authority also rejected the Agency's claim
that this proposal concerned a matter specifically provided for by the
Panama Canal Act. The Authority rejected the Agency's argument that the
portion of Proposal 2 before the Authority concerned a matter
specifically provided for by Federal statute.
The Authority found that Proposal 3 was similar to that portion of
Proposal 1 that sought to provide retained pay to employees who were
reassigned to a different position because of disability that stemmed
from illness or injury that was not employment related. The Authority
noted that in conjunction with Proposal 1, it rejected the Agency's
claim that the issue of the rate of pay that would be provided an
employee who is reassigned to a different position under those
circumstances is matter that is specifically provided for by Federal
statute. The Agency made the same argument with regard to Proposal 3
and the Authority rejected it for the same reasons. Based on the
reasons expressed in conjunction with Proposal 1, the Authority
concluded that Proposal 3 was negotiable.
Case No. 0-NG-2032
DISTRICT NO. 1, MARINE ENGINEERS BENEFICIAL, ASSOCIATION/NATIONAL
MARITIME UNION, LICENSED DIVISION, PANAMA CANAL AREA
(Union)
PANAMA CANAL COMMISSION
(Agency)
September 24, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on a negotiability appeal filed
under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute). It concerns three proposals, which
were made in the alternative, concerning pay retention for disabled
employees who are reassigned to lower-paid jobs. For the reasons that
follow, we find that the proposals are negotiable.
Under the Agency's Disabled Employees' Placement Program (DEPP) an
employee who is disabled as a result of performance-of-duty (POD) injury
or illness or off-the-job injury or illness and who is unable to meet
the physical or medical standards of his or her current position is
placed in a different position. As provided in the Agency's Personnel
Manual, an employee who is reassigned to a lower-paid position under
this program may be granted indefinite pay retention when "it is
determined to be of mutual benefit to the (A)gency and the employee."
Statement of Position, Attachment B -- Panama Canal Personnel Manual,
Subchapter 6, Section 6-4.e.(3)(a). According to the parties, a
practice has developed under which indefinite pay retention has been
granted automatically.
By letter dated December 16, 1991, the Agency notified the Union that
it planned to abolish the practice of automatically granting indefinite
pay retention and would instead apply a "highest previous step rule()"
under which the employee would receive the highest pay step available in
the new position that is closest to the employee's pay at the time
disability occurred. Petition, Attachment B at 2. In the letter, the
Agency stated that indefinite retained pay would be granted "only under
very exceptional circumstances." Id.
According to the parties, Agency employees who suffer disability as a
result of employment-related illness or injury may be eligible for
compensation under either the Federal Employees Compensation Act (FECA),
5 U.S.C. Section 8101 et seq., or the "Riesgos Profesionales" program of
the Social Security System of the Republic of Panama. Coverage depends
on the employee's nationality and date of hire with the Agency.
In this regard, as will be discussed in greater detail later,
pursuant to the Panama Canal Treaty of 1977 Agency employees who are not
U.S. citizens and who were employed by the Agency subsequent to October
1, 1979, are covered by the Social Security System of the Republic of
Panama. According to the Agency, the disability entitlements of those
employees who are covered under that system are set forth in a
Panamanian law, the Panama Social Security Organic Law. Pursuant to the
Panama Canal Act, an American law that implements the Panama Canal
Treaty, FECA is inapplicable to any employee of the Agency who is not a
citizen of the United States, whose initial appointment with the Agency
occurred after October 1, 1979, and who is covered by the Social
Security System of the Republic of Panama pursuant to any provision of
the Panama Canal Treaty and related agreements. 22 U.S.C. Section
3649.
We propose to retain the past practice of the automatic granting
of indefinite pay retention to employees who are placed in lower
graded jobs through the Disabled Employees' Placement Program.
A. Positions of the Parties
1. The Agency
The Agency describes this proposal as seeking to maintain the status
quo. The Agency asserts that insofar as this proposal applies to
employees who are subject to FECA and whose disability results from POD
injury or illness (Category 1 employees), it is nonnegotiable because it
concerns a matter that is specifically provided by Federal law and
because it is inconsistent with Federal law and Government-wide
regulation. The Agency contends that insofar as this proposal applies
to employees who are subject to the Riesgos Profesionales program and
who suffer a disability as a result of a POD injury or illness (Category
2 employees) or to employees who suffer a disability as a result of an
off-the-job injury or illness (Category 3 employees), it is
nonnegotiable because it concerns a matter that is specifically provided
for by Federal law.
With respect to Category 1 employees, the Agency argues that by
requiring that it provide indefinite retained pay to Category 1
employees who have been reassigned to lower-paid positions, this
proposal is "in contravention of 5 (U.S.C.) Chapter 81 and 20 (C.F.R.)
Part 10, Section 10.303, a Government-wide regulation." Statement of
Position at 8. The Agency contends that 5 U.S.C. Sections 8102(a) and
8106 prescribe "what the United States will pay 'if the disability is
partial()'" and that "(t)he law authorizes no other way to pay an
employee" who suffers a partial disability. Id. at 9. The Agency
asserts that 20 C.F.R. Section 10.303, which it contends is a
Government-wide regulation, prescribes how the entitlement of an
employee who suffers a loss of wage-earning capacity because of partial
disability will be calculated. The Agency contends that this proposal
would effectively displace the procedure that is provided for by law and
Government-wide regulation for the purpose of compensating employees
suffering job-related partial disability as a consequence of
employment-related injury or illness.
Citing the Authority's decision in National Treasury Employees Union,
NTEU Chapter 51 and Internal Revenue Service, Wichita District Office,
40 FLRA 614 (1991), the Agency asserts that compensation for partial
disability of employees to whom FECA applies is comprehensively dealt
with by FECA and is not subject to collective bargaining. The Agency
argues that the proposal requires that it pay employees who are covered
by FECA "what is tantamount to compensation for loss of wage earning
capacity for a POD injury . . . ." Statement of Position at 11. The
Agency contends that 5 U.S.C. Chapter 81 together with implementing
Government-wide regulations direct that an eligible employee whose
disability is partial be paid compensation that is calculated in a
specific manner and that, therefore, Proposal 1 does not meet the
definition of "conditions of employment" as set forth in section 7103(
a)(14) of the Statute.
The Agency argues that insofar as the proposal would apply to
Category 2 employees, it "concerns a matter that is specifically
provided (for) by law and international Treaty." Id. at 12.
Specifically, the Agency asserts that paragraph 1(a) of Article VIII of
the Agreement in Implementation of Article III of the Panama Canal
Treaty provides that employees who are not U.S. citizens and who are
employed after the effective date of the Treaty shall be covered by the
Social Security System of the Republic of Panama. The Agency claims
further that paragraph 1(c) of that Article requires that the Agency
make employer/employee contributions for that coverage. According to
the Agency, the Panamanian Social Security System governs the benefits
to which eligible employees who suffer permanent partial disability are
entitled. The Agency contends that this proposal would require it to
pay what is tantamount to compensation for loss of wage-earning capacity
notwithstanding the fact that an employee is entitled to benefits under
the Panamanian Social Security System. The Agency argues that this
proposal circumvents the Treaty, which has the force of Federal law, and
results in "augmenting what the Treaty and the Panama Canal Act
specifically provide for." Id. at 13. The Agency contends that
consequently this proposal does not come within the definition of
conditions of employment under section 7103(a)(14)(C) of the Statute.
The Agency argues that insofar as Category 3 employees are concerned,
the proposal is nonnegotiable because it seeks to augment entitlements
specifically provided by Federal statute. In this regard, the Agency
contends that "the specific statutory scheme of Section 1209(a) of the
Panama Canal Act" provides that employees who are permanently disabled
as a result of a POD injury or illness are entitled to FECA benefits or
to Social Security benefits from the Republic of Panama. Id. The
Agency claims that under this statutory scheme nothing is provided for
disability resulting from off-the-job injury or illness. The Agency
asserts that "(u)nder the doctrine of expressio unius est exclusio
alterius, it seems clear that off-the-job injuries which result in what
is tantamount to a 'loss of wages' were not to be 'compensated' by the
agency." /1/ Id. at 14. The Agency contends that because Proposal 1
"would require payment in circumstances in addition to that specifically
provided by statute," it does not concern conditions of employment as
defined in section 7103( a)(14) of the Statute. Id.
2. The Union
In its petition the Union states that the intent of Proposal 1 is to
retain the practice of granting indefinite pay retention to all disabled
employees who are accommodated by reassignment to different positions.
In response to the Agency's statement of position, the Union argues
that Proposal 1 does not contravene either FECA or its implementing
regulations and that it does not concern a matter that is specifically
provided for by Federal statute. The Union contends that, under FECA,
Federal employees are entitled to payment, not from their employer but
from a separate fund administered by the Secretary of Labor, if they
suffer a loss of wage-earning capacity as a result of illness or injury
sustained as a result of the performance of their duties. The Union
asserts that if no loss of wage-earning capacity occurs as the result of
an injury or illness, FECA does not apply. Thus, the Union contends
that FECA does not address all employees who are injured in the
performance of their duties but only those who suffer loss of
wage-earning capacity.
The Union argues that FECA is not a comprehensive scheme for all
matters relating to monetary or other benefits relating to injured or
disabled Federal employees but is, rather, a comprehensive scheme
covering the government's liability in tort for performance of duty
injury or illness. The Union contends that FECA does not specifically
govern all actions that an agency may take with regard to disabled
employees. The Union states that Proposal 1 does not concern
"compensation for an occupational illness()" or "damages" for injury
but, rather, simply concerns compensation for the work performed by the
employee in a position to which he or she is reassigned to accommodate a
disability. Response at 3. The Union describes the proposal as its
attempt to negotiate over pay rates for employees who are reassigned by
management to other positions through the Agency's DEPP. The Union
contends that if the proposal is inconsistent with FECA as alleged by
the Agency, the Agency has been violating FECA for the past 10 years and
the Agency cannot provide retained pay in exceptional circumstances in
the future as it has stated it intends to do.
The Union denies that Proposal 1 conflicts with Panamanian Social
Security laws /2/ or constitutes a double benefit for injury. In this
regard, the Union claims that, unlike FECA, Panamanian Social Security
laws do not require that a loss of wage-earning capacity occur before an
employee is eligible for benefits. Additionally, the Union asserts that
Panamanian Social Security laws do not constitute a Federal statute
within the meaning of section 7103(a)(14) of the Statute.
The Union maintains that FECA and the Panamanian Social Security laws
have no applicability to disabilities that result from off-duty illness
or injury and disputes the Agency's claim that this circumstance
evidences an intent on the part of Congress that no accommodation be
accorded employees who have such disabilities. The Union asserts that
the provision of retained pay to employees who are reassigned because of
their physical disability is consistent with the Agency's
responsibilities under the Rehabilitation Act. /3/
B. Analysis and Conclusions
As written and explained by the Union, Proposal 1 requires that
employees who are reassigned to a lower-paid position because of
disability will continue to receive the level of pay that they were
receiving for the positions that they occupied prior to the
reassignments. Thus, the proposal concerns the rate of pay that will be
given to a reassigned employee.
First, we address the Agency's claim that this proposal is
inconsistent with FECA and implementing regulations that are found at 20
C.F.R. Section 10.303 and that it concerns a matter that is specifically
provided for by FECA.
The regulations relating to the implementation and administration of
FECA, which have been issued by the Department of Labor, /4/ clearly
envision that an agency may accommodate a disabled employee by assigning
him or her to an alternative position or to restricted or limited
duties. See 20 C.F.R. Sections 10.123-10.124. FECA and those
implementing regulations establish the rate of disability compensation
that must be paid an employee who is unable to return to the position
held at the time of injury or illness but who is not totally disabled
for all gainful employment and who suffers a loss of wage-earning
capacity. 5 U.S.C. Section 8106; 20 C.F.R. Section 10.303. However,
those authorities do not address the subject of this proposal, that is,
the pay that will be provided a partially disabled employee who is
accommodated by reassignment to a different position. In our view, the
determination of pay under those circumstances is a separate or discrete
issue from that of compensation for disability. This proposal applies
to a different facet of the actions that may occur with respect to, and
as a consequence of, an employee's disability than those governed by
FECA and its implementing regulations. Thus, Proposal 1 does not
attempt to cover the same matters that are covered by FECA. Compare
National Federation of Federal Employees, Local 1655 and U.S.
Department of Defense, Department of Military Affairs, Springfield,
Illinois, 39 FLRA 1087, 1098-1101 (1991), reversed as to other matters,
No. 91-1216 (D.C. Cir. June 2, 1992) (Because Proposals 6 and 8
establish the conditions under which employees will be immune from suit
for actions in the course of their employment, and the scope of that
immunity, they pertain to matters that are specifically provided for by
the Federal Tort Claims Act.).
Obviously, the pay accorded an accommodated employee will determine
whether, and to what extent, a disabled employee suffers a loss of
wage-earning capacity and his or her consequent entitlement to
disability compensation for that loss. However, in our view, preventing
any such loss, as this proposal seeks to do, is not incompatible or
inconsistent with the procedure provided by FECA and the implementing
regulations for compensating disabled employees for loss of wage-earning
capacity. Thus, where an agency otherwise has discretion to determine
the pay rate that will be granted an employee who is reassigned to a
different position, we see nothing in either FECA or the implementing
regulations that prevents the Agency from exercising its discretion to
determine the pay rate that will be provided a reassigned employee who
is disabled. FECA simply does not address that issue.
Just as FECA and its implementing regulations do not govern the pay
that will be granted to an employee who is reassigned to a different
position because of disability resulting from employment-related illness
or injury, neither do they govern the pay that will be granted to an
employee whose reassignment stems from disability that resulted from
illness or injury that is not employment related. In this regard, while
FECA may govern the issue of whether and to what extent compensation for
disabilities that result from illness or injury that is not employment
related may be provided, it does not govern the pay that may be provided
an employee whose disability has been accommodated by reassignment to a
different position.
Based on the foregoing, we reject the Agency's claims that Proposal 1
is inconsistent with FECA and 20 C.F.R. Section 10.303 or that it
concerns a matter that is specifically provided for by FECA.
Next, we address the Agency's claim that the proposal concerns a
matter that is specifically provided for by the Panama Canal Treaty and
the Panama Canal Act. Specifically, the Agency contends that under the
Treaty and its implementing agreements, and the Panama Canal Act, Agency
employees who are not U.S. citizens, and who were appointed subsequent
to October 1, 1979, are subject to the Social Security System of the
Republic of Panama for purposes of disability benefits. According to
the Agency, the Treaty and the Panama Canal Act specifically provide the
manner in which disability compensation will be provided to those
employees.
Initially, we note that the Authority has held that the Panama Canal
Treaty has the force of Federal law. For example, International
Organization of Masters, Mates and Pilots and Panama Canal Commission,
13 FLRA 508, 512-13 (1983) (Panama Canal Commission).
Under the Treaty, certain Agency employees who are not U.S. citizens
are subject to the Social Security System of the Republic of Panama,
which, among other things, provides for medical care and pensions in
cases of employment-related accident or occupational illness. /5/
However, nothing in the record of this case shows that the Panamanian
Social Security System, which the Treaty applies to those employees,
governs the pay that will be provided to an employee who is reassigned
to a different job because of disability. The Agency submitted the
applicable provisions of the Panama Social Security Organic Law,
Panama's law prescribing disability entitlements, with its Statement of
Position. Nothing in the excerpts from the Panama Social Security
Organic Law that the Agency submitted addresses the accommodations that
may be made with respect to the reassignment of disabled employees. /6/
Consequently it has not been established that, where the Agency
otherwise has the discretion to determine what pay will be provided an
employee who is subject to the Social Security System of the Republic of
Panama and who has been reassigned to a different position as an
accommodation for a disability, the determination of that pay is
specifically provided for by the Panama Canal Treaty.
Additionally, we reject the Agency's claim that this proposal
concerns a matter that is specifically provided for by the Panama Canal
Act. The Agency's claim in this regard is based on reasoning similar to
that which we have rejected above that under the Treaty and its
implementing documents, Category 2 employees are entitled only to the
disability benefits that accrue to them under the Social Security System
of the Republic of Panama. In our view section 1209(a) of the Panama
Canal Act, /7/ on which the Agency relies, addresses the applicability
of FECA to non-citizen employees of the Agency and does not govern the
issue of the pay rate that will be granted a disabled employee who has
been accommodated by reassignment to a different position. As we have
discussed above, we find that while the issue of the pay provided to an
employee who has been reassigned to a different position because of
disability is related to the issue of disability compensation, the two
issues are distinct. As we also stated above, nothing in the record of
this case establishes that the Social Security System of the Republic of
Panama governs the pay that will be given to disabled employees who have
been accommodated by reassignment to different positions. Consequently,
we reject the Agency's argument that such matters are, by extension,
specifically provided for by the Panama Canal Act.
We note that the Agency does not deny that it has the discretion to
establish the rate of pay that will be given a disabled employee who has
been reassigned under its DEPP. Moreover, the Agency makes no claim
that its past practice of providing pay retention was inconsistent with
Federal law. In fact, the record establishes that the Agency intends to
continue the practice on a more selective basis. Based on the record in
this case, we find that the Agency's practice of providing pay retention
is a matter that is within its discretion and is not inconsistent with
Federal law or applicable regulation.
In the absence of any other basis that has been argued or is
otherwise apparent to us for reaching a different result, we conclude
for the foregoing reasons that Proposal 1 is negotiable.
In the case of job related injury or illness, we propose to adjust
the compensation received due to automatic granting of indefinite
pay retention to those employees who are placed in lower graded
jobs through the Disabled Employees' Placement Program (DEPP).
This adjustment would be the difference between the employee's
automatically granted retained pay and any compensation
forthcoming under either the Federal Employees' Compensation Act
(FECA) or the Panama Social Security "Riesgos Profesionales"
programs.
A. Positions of the Parties
1. The Agency
The Agency argues that "by virtue of section 1209(a) (of the Panama
Canal Act), 5 (U.S.C.) (Section) 8106(a) provides specific authority for
the United States Government to pay covered employees 'compensation'
when 'disability is partial' from personal injury sustained while in the
performance of duty." /8/ Statement of Position at 15. The Agency
contends that 5 U.S.C. Section 8106(a) and the implementing regulations
issued by the Department of Labor do not authorize retained pay. The
Agency states that it is not clear how "compensation" under FECA could
be paid where an employee is receiving retained pay and, hence,
suffering no wage loss.
The Agency argues that Proposal 2 is inconsistent with law because it
would require the Agency to grant retained pay to an employee "in
contravention of 8106(a) which requires that compensation be paid 'when
the disability is partial' . . . ." Statement of Position at 15. The
Agency further contends that because Proposal 2 would require
augmentation of what FECA specifically authorizes, it concerns a matter
that is specifically provided for by Federal statute.
With regard to non-U.S. citizens who were appointed to the Agency
subsequent to the Panama Canal Treaty, the Agency contends that Article
VIII of the Agreement in Implementation of Article III of the Treaty
prescribes that these employees are covered by the Social Security
System of the Republic of Panama. /9/ The Agency asserts that this
proposal would "in effect require (the Agency) to pay (an employee) for
loss of wages different from or in addition to that which was provided
by the Treaty when it specifically prescribed Social Security benefits
for these employees." Id.
The Agency argues that section 1209 of the Panama Canal Act intends
that different benefits apply to two groups of Agency employees: (1)
all United States citizen employees and non-United States citizen
employees hired prior to the Treaty; and (2) all non-United States
citizen employees hired after the Treaty. The Agency contends that
Proposal 2 "would vitiate the difference the law intended to establish."
Id. at 16. The Agency asserts that Proposal 2 is to the same effect as
Proposal 21 in Panama Canal Commission, 13 FLRA at 525, in that it
concerns a matter that is specifically provided for by Federal statute
and thus is excluded from the definition of conditions of employment
under section 7103(a)(14) of the Statute.
2. The Union
In the petition, the Union states that Proposal 2 is intended to
continue indefinite pay retention and to reduce the amount of retained
pay by whatever benefits an employee received from FECA or the
Panamanian Social Security System, "if any such benefits are received."
Petition at 4. In its Reply Brief, the Union states that it "knows of
no situation in which (P)roposal 2 would apply to employees covered by
FECA." Response at 5. The Union asserts that Proposal 2 "was written
with reference to FECA benefits because management claimed, in its
original December 16, 1991, letter to the (U)nion . . . that
overcompensation has resulted from providing retained pay to employees
otherwise eligible for FECA benefits." Id. The Union states that in
view of the Agency's admission in its Statement of Position in this case
that overcompensation does not occur with respect to employees who are
eligible for FECA, Proposal 2 "should be analyzed only with respect to
its effects on employees covered by the Panamanian social security
laws." Id. at 6.
As to that portion of Proposal 2 that would apply to employees who
are covered under the Panamanian Social Security System, the Union
argues that the retained pay provided by Proposal 2 "is not compensation
for the injury the employee sustains . . . but rather (is) compensation
for the work performed in the reassigned position." Id. The Union
contends that under the Agency's plan to apply the "highest previous
step" rule to employees receiving compensation from the Panamanian
Social Security System, employees reassigned under the Agency's DEPP
would receive a larger total amount than they would under Proposal 2.
The Union argues that, contrary to the Agency's contention, there is
no evidence that Congress intended that non-United States citizen
employees who were hired subsequent to the Treaty should suffer greater
economic loss as a result of partial disability than other Agency
employees.
B. Analysis and Conclusions
Initially, we construe the Union's statement that this proposal
should be analyzed only with respect to its effects on employees covered
by the Panamanian Social Security System as a request to withdraw the
portion of the proposal that refers to FECA. We grant that request, and
that portion of this proposal will not be considered further.
We find that this proposal concerns the pay that will be provided to
an employee who is reassigned to a different position under the Agency's
DEPP. As we discussed in conjunction with Proposal 1 above, while that
pay will affect disability compensation, the two issues are distinct.
Nothing in the record of this case establishes that the Social Security
System of the Republic or Panama, which under the scheme resulting from
the Panama Canal Treaty and section 1209(a) of the Panama Canal Act
applies to certain Agency employees, governs the issue of the pay rate
that will be given an employee who is reassigned under the Agency's
DEPP. For the reasons discussed in conjunction with Proposal 1, we
reject the Agency's argument that the portion of Proposal 2 that remains
before us concerns a matter that is specifically provided for by Federal
statute.
We find that the circumstances involved with respect to Proposal 21
in Panama Canal Commission are distinguishable from those present here.
Proposal 21 sought to establish a life insurance policy for U.S.
citizen employees who were covered under chapter 87 of title 5, United
States Code, which establishes a life insurance program for Federal
employees. Proposal 2 addresses only retained pay for disabled
employees who have been reassigned. While Proposal 2 would operate to
minimize any wage loss suffered by disabled employees who are reassigned
to lower-graded positions, it does not establish a disability
compensation program different from or in addition to any that are
specifically provided for by law. Moreover, as we have noted, nothing
in the record of this case establishes that the pay that will be
provided to a disabled employee who has been accommodated by
reassignment to a different position is a matter that is governed by the
disability compensation programs encompassed within the terms of the
Treaty or the Panama Canal Act.
We reject the Agency's assertion that Proposal 2 concerns a matter
that is specifically provided for by Federal statute. As no other basis
has been argued or is otherwise apparent to us that would support a
different result, we conclude for the foregoing reasons that the portion
of Proposal 2 that remains before us is negotiable.
In the case of a non-job related injury or illness, we propose
that the parties mutually develop the criteria and the appropriate
procedures that will be used to decide if indefinite pay retention
would be granted for these employees who are placed in lower
graded jobs through the Disabled Employees' Placement Program
(DEPP). These procedures would become effective only after the
parties mutually agree to them.
A. Positions of the Parties
The Agency argues that this proposal is to the same effect as
Proposal 1 insofar as it concerns Category 3 employees because it seeks
indefinite pay retention for an employee whose disability has resulted
from injury or illness that is not employment related. The Agency
contends that this proposal is nonnegotiable for the same reasons that
it expressed in conjunction with that aspect of Proposal 1. That is,
the Agency asserts that Proposal 3 seeks to augment entitlements that
are specifically provided for by Federal statute and, therefore, does
not concern conditions of employment as defined in section 7103(a)(14)
of the Statute.
The Union relies on the arguments that it made in conjunction with
Proposal 1 and asserts that there is no evidence that Congress intended
to foreclose relief for employees who suffer partial disability due to
illness or injury that is not work related. The Union contends that
Proposal 3 is negotiable.
B. Analysis and Conclusions
Proposal 3 is similar to that portion of Proposal 1 that sought to
provide retained pay to employees who are reassigned to a different
position because of disability that stems from illness or injury that is
not employment related. In conjunction with Proposal 1, we rejected the
Agency's claim that the issue of the rate of pay that will be provided
an employee who is reassigned to a different position under those
circumstances is a matter that is specifically provided for by Federal
statute. The Agency makes the same argument here and we reject it for
the same reasons that we did in connection with Proposal 1. Based on
the reasons expressed in conjunction with Proposal 1, we conclude that
Proposal 3 is negotiable.
The Agency will upon request, or as otherwise agreed to by the
parties, bargain on Proposals 1, 2 and 3. /10/
(1) "Expressio unius est exclusio alterius" is a maxim of statutory
interpretation meaning that the expression of one thing is the exclusion
of another. Black's Law Dictionary 581 (6th ed. 1990).
(2) Based on our reading of the Agency's Statement of Position, the
Agency has not asserted conflict with Panamanian Social Security laws as
a basis for its position that Proposal 1 is nonnegotiable. Rather it
has asserted that Proposal 1 is inconsistent with or concerns a matter
that is specifically provided for by FECA, the Panama Canal Treaty,
and/or the Panama Canal Act.
(3) The Rehabilitation Act of 1973, 29 U.S.C. Section 5701 et seq.
(4) The regulations are set forth at 20 C.F.R. Part 10.
(5) Article VIII of Agreement in Implementation of Article III of the
Panama Canal Treaty provides in relevant part:
1. Concerning Social Security and retirement benefits applicable to
employees of the Commission who are not United States citizen employees,
the following provisions shall apply:
(a) Such persons who are employed by the Commission subsequent
to the entry into force of this Agreement shall, as of their date
of employment, be covered by the Social Security System of the
Republic of Panama.
(b) Such persons who were employed prior to the entry into
force of this Agreement by the Panama Canal Company or Canal Zone
Government and who were covered under the Civil Service Retirement
System of the United States shall continue to be covered by that
system until their retirement or until the termination of their
employment with the Commission for any other reason.
(c) The commission shall collect and transfer in a timely
manner to the Social Security System of the Republic of Panama the
employer's and employees' contributions for those of its employees
who are covered by the Social Security System of the Republic of
Panama.
(6) We do not suggest that this particular law constitutes a Federal
statute within the meaning of section 7103(a)(14)(C). However, it does
encompass the specific provisions that apply to certain Agency employees
as a consequence of the terms of the Treaty and its implementing
agreements.
(7) Section 1209(a) of the Panama Canal Act, which is codified at 22
U.S.C. Section 3649, provides as follows:
Section 3649. Inapplicability of certain benefits to certain
noncitizens
Chapter 81 of Title 5, relating to compensation for work
injuries, chapter 83 of such Title 5, relating to civil service
retirement, chapter 87 of such Title 5, relating to life
insurance, and chapter 89 of such Title 5, relating to health
insurance, are inapplicable to any individual --
(1) who is not a citizen of the United States;
(2) whose initial appointment by the Commission occurs after
October 1, 1979; and
(3) who is covered by the Social Security System of the
Republic of Panama pursuant to any provision of the Panama Canal
Treaty of 1977 and related agreements.
(8) Section 1209(a) of the Panama Canal Act is set forth at note 7.
5 U.S.C. Section 8106(a) provides as follows:
Section 8106. Partial disability
(a) If the disability is partial, the United States shall pay
the employee during the disability monthly monetary compensation
equal to 66 2/3 percent of the difference between his monthly pay
and his monthly wage-earning capacity after the beginning of the
partial disability, which is known as his basic compensation for
partial disability.
(9) The relevant portion of Article VIII is set forth at note 5.
(10) In finding that these proposals are negotiable, we make no
judgment as to their merits. We reiterate that, in view of the Union's
request to withdraw that portion of Proposal 2 that relates to FECA,
that portion of Proposal 2 is not before us.
45 FLRA 1256
45 FLRA NO 126
NTEU and U.S. Dept. of the Treasury, Office of the Chief Council,
Internal Revenue Service, Case No. 0-NG-1582 (Decided September 24,
1992)
7106(A)(2)(B)
7106(b)(3)
NEGOTIABILITY DETERMINATION
REMAND
MGT'S RIGHT TO ASSIGN WORK
APPROPRIATE ARRANGEMENTS
This case came before the Authority on remand from the United States
Court of Appeals for the District of Columbia Circuit. U.S. Department
of the Treasury, Office of the Chief Counsel, Internal Revenue Service
v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992) (IRS v. FLRA). In that
decision, the court vacated the Authority's decision in NTEU and U.S.
Dept. of the Treasury, Office of Chief Counsel, IRS, 39 FLRA 27 (1991)
that two provisions of an agreement, which were disapproved by the
General Counsel, Department of the Treasury, were negotiable under
section 7106(b)(3) of the Federal Service Labor-Management Relations
Statute.
On remand, the Authority dismissed the Union's petition for review.
The Authority noted that the provisions directly interfered with the
Agency's right to assign work, and did not constitute an arrangement
within the meaning of section 7106(b)(3) of the Statute.
Case No. 0-NG-1582, 39 FLRA 27 (1991)
NATIONAL TREASURY EMPLOYEES UNION
(Union)
U.S. DEPARTMENT OF THE TREASURY, OFFICE OF CHIEF COUNSEL, INTERNAL
REVENUE SERVICE
(Agency)
September 24, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on remand from the United States
Court of Appeals for the District of Columbia Circuit. U.S. Department
of the Treasury, Office of the Chief Counsel, Internal Revenue Service
v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992) (IRS v. FLRA). In that
decision, the court vacated the Authority's decision in National
Treasury Employees Union and U.S. Department of the Treasury, Office of
Chief Counsel, Internal Revenue Service, 39 FLRA 27 (1991) (Office of
Chief Counsel) that two provisions of an agreement, which were
disapproved by the General Counsel, Department of the Treasury, were
negotiable under section 7106(b)(3) of the Federal Service
Labor-Management Relations Statute (the Statute). Following the court's
remand, the Union and the Agency filed supplemental briefs.
For the following reasons, we will dismiss the Union's petition for
review as to the two provisions.
A. Provision
Supervisors will refrain from rotating or scheduling assignments
of employees to avoid compensation of a particular employee at the
higher level.
B. Background and Court's Decision
Noting the Union's sole argument that this provision constituted an
appropriate arrangement under section 7106(b)(3) of the Statute, the
Authority assumed, in Office of Chief Counsel, that the provision
directly interfered with management's right to assign employees and
applied the test adopted in National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24
(1986) (KANG) to determine whether it constituted an appropriate
arrangement. The Authority concluded, as relevant here, that the
provision was an arrangement for employees adversely affected by the
exercise of management's right to assign employees because the
provision's objective was "to mitigate the adverse economic effect on
employees when management curtails details to avoid paying increased
compensation." Office of Chief Counsel, 39 FLRA at 66. Applying KANG,
the Authority concluded that the provision did not excessively interfere
with the Agency's right to assign employees and was negotiable as an
appropriate arrangement.
The court rejected the Authority's reasoning. The court noted, in
this connection, that there was no contention that "a temporary
assignment to a higher-level position itself has an adverse effect on
employees(,)" and that such assignment "would seem to provide employees
with an opportunity to gain valuable new skills." IRS v. FLRA, 960 F.2d
at 1073. In the court's view, the adverse effect addressed by the
provision "evidently" was only the denial of a benefit: increased
compensation for details involving higher-graded work which last one pay
period or longer. Id. The court concluded that the provision did not
appear to satisfy the requirement of section 7106(b)(3) that a proposed
arrangement "address adverse effects flowing from the exercise of a
protected management right." Id. Because, in the court's view, the
Authority did not adequately explain how the provision constituted an
arrangement, the court remanded the matter to the Authority for further
proceedings.
C. Positions of the Parties
1. Union
The Union contends that the provision does not seek a new benefit for
employees. Rather, the Union maintains that the provision's intent is
to "ensure that benefits already negotiated are not negated through the
exercise of management rights." Union's Supplemental Brief at 11. The
Union also contends that short-term details disrupt and delay employees'
performance of their regular assignments and that employees are
adversely affected "as a matter of equity when they are deprived of
equal pay for equal work." Id. at 12. In addition, the Union argues
that short details allow management to avoid establishing higher-graded
positions, thereby depriving employees of opportunities to apply for
such positions.
2. Agency
The Agency notes the court's conclusion that temporary assignments to
perform higher-graded work benefit employees, and argues that the
provision attempts to obtain the additional benefit of higher pay by
requiring that those details last for at least a pay period. The Agency
also maintains that the provision "tends to discourage an employer's
decision to place employees temporarily in positions that may offer
employees an opportunity to obtain new skills." Agency's Supplemental
Brief at 3. The Agency argues that, because the provision provides "a
pure benefit," it does not constitute an arrangement. Id.
D. Analysis and Conclusions
Section 7106(b)(3) of the Statute provides for negotiations over
"appropriate arrangements for employees adversely affected by the
exercise of" management rights. Consistent with the plain wording of
the section and longstanding Authority precedent, a proposal cannot
constitute an appropriate arrangement unless, among other things, it is
intended to mitigate adverse effects resulting from the exercise of a
management right. For example, KANG, 21 FLRA at 31-33.
In this case, we conclude, in agreement with the court, that the
provision would not address adverse effects resulting from the exercise
of a management right. In this regard, the provision is expressly and
solely directed at preventing management's curtailment of details to
avoid the negotiated requirement for increased compensation. Even
assuming that, as the Union argues, employees are adversely affected by
short-term details in ways other than denial of higher pay, the
provision does not address and would not mitigate those effects.
Instead, it is clear that, as argued by the Union in earlier
proceedings, the provision would enable the Agency to implement
short-term details for reasons other than avoidance of the contractual
requirement for higher pay. See Reply Brief at 23-24.
As the provision addresses only the denial of a negotiated benefit,
we find, consistent with IRS v. FLRA, that the provision does not
constitute an arrangement under section 7106(b)(3) of the Statute.
Therefore, as it is undisputed that the provision directly interferes
with management's right to assign employees under section 7106(a)(2)(A)
of the Statute, it is nonnegotiable.
In the future, the Authority will no longer find that denial of a
negotiated benefit, standing alone, is an adverse effect resulting from
the exercise of a management right within the meaning of section 7106(
b)(3) of the Statute. This is not to suggest, however, that, provided a
provision addresses adverse effects flowing from the exercise of a
management right, the provision cannot also address negotiated benefits.
A. Provision
A. The Office will approve leaves of absence of any employee
elected to a position of national officer of the Union for the
purpose to (sic) serving full-time in the elected position.
B. The Office will approve a leave of absence for one elected
local chapter officer for the purpose of serving full-time in the
elected position.
C. Leaves of absence granted under A and B, above, will be for
a period concurrent with the term of office of the elected
official and will be automatically renewed by the Office upon
notification in writing from the elected official who has been
reelected and wishes to continue in a leave of absence status.
D. The Office will approve leaves of absence for two (2)
employees, but not more than one employee from any one work unit,
for the purpose of serving in full-time appointive positions for
the Union. There (sic) term of the leave of absence will be two
(2) years. All affected individuals may have their leaves of
absence renewed for one additional two (2) year period upon
request.
B. Background and Court's Decision
In Office of Chief Counsel, 39 FLRA at 44-50, the Authority concluded
that, by requiring the Agency to grant leaves of absence to employees
who wish to serve the Union in elected or appointed positions, this
provision directly interfered with management's right to assign work.
However, the Authority found that the provision constituted an
appropriate arrangement under section 7106(b)(3) of the Statute. The
Authority concluded, in this regard, that:
(I)t is reasonably foreseeable that bargaining unit employees
would be adversely affected by the exercise of management's right
to deny leaves of absence if part-time Union representatives are
unavailable to assist employees in protecting their (rights under
section 7102 of the Statute). Moreover, . . . it is reasonably
foreseeable that employees wishing to serve the Union would be
adversely affected by management's exercise of the right . . . .
Id. at 47. Balancing the benefits afforded unit employees by the
provision against the impact of the provision on the Agency's right to
assign work, the Authority concluded that the provision did not
excessively interfere with management's right and, therefore, was
negotiable as an appropriate arrangement under section 7106(b)(3) of the
Statute.
In IRS v. FLRA, the court addressed the Authority's finding that the
denial of leaves of absence would adversely affect unit employees. In
the court's view, "(t)he employee's dilemma is caused by his or her
election or appointment to the union." 690 F.2d at 1074. According to
the court, the Union "proposed a benefit (leaves of absence for its
officials), and the denial of that benefit purportedly produces the
requisite adverse effects." Id. The court rejected the Authority's
conclusion that the effects of denials of leaves of absence on unit
employees' rights to Union representation and rights to serve as Union
representatives were sufficient adverse effects under section 7106(b)(
3). Indeed, the court concluded that these rights were not "at all
relevant(.)" Id. n. 3. The court remanded the matter to the Authority
because, in the court's view, the Authority had not adequately explained
how this provision, "rather than merely seeking benefits for employees,
compensate(d) for adverse effects that flow from the exercise of
management prerogatives." Id. at 1075. /*/
C. Positions of the Parties
1. Union
The Union argues that the provision is an arrangement within the
meaning of section 7106(b)(3) of the Statute. The Union asserts that,
although leaves of absence constitute a benefit, by "denying the
proposed benefit . . . and exercising its right to assign work,
management is adversely affecting all bargaining unit employees by
impairing the union's ability to provide them adequate representation."
Union's Supplemental Brief at 6 (emphasis in original).
In addition, the Union argues that the provision does not excessively
interfere with the Agency's right to assign work. According to the
Union, "while the right to assign (work) necessarily encompasses the
right to make individual assignments, in considering the negotiability
of proposals that interfere with that right, the Authority assesses any
interference with a view to the general 'effect of the proposal on
effective and efficient government operations.'" Id. at 9 (quoting
KANG, 29 FLRA at 33). In the Union's view, the benefits conferred on
employees by the provision "heavily outweigh()" any negative impact on
management's right. Id.
2. Agency
The Agency argues that, by requiring the Agency to grant leaves of
absence, the provision "provides a pure benefit" and, consistent with
the court's decision, cannot constitute an appropriate arrangement.
Agency's Supplemental Brief at 4. In the alternative, the Agency
contends that any adverse effects addressed by the provision are "merely
speculative," and the adverse impact arises only after an employee's
individual request for a leave of absence is denied. Id. The Agency
also asserts that the provision excessively interferes with its right to
assign work because "it mandates a grant of leave to an employee elected
to a union office in all circumstances." Id. at 7 (emphasis in
original).
D. Analysis and Conclusions
Longstanding Authority precedent confirms that management's right to
assign work encompasses the right to grant, or deny, requests for leaves
of absence. For example, American Federation of Government Employees,
AFL-CIO, Local 2263 and Department of the Air Force, Headquarters,
1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA
580, 583 (1984). Accordingly, although the Authority previously
referred to adverse effects resulting from the exercise of management's
"right to deny leaves of absence," 39 FLRA at 47, it is clear and
undisputed that a denial of a leave of absence results directly from the
exercise of the right to assign work and, as such, adverse effects
flowing from a refusal to grant a leave of absence may be attributed to
the exercise of a management right.
In this case, the sole adverse effects identified by the Union, in
its original submissions to the Authority and in its supplemental
submission following the court's remand, relate to the alleged denial of
employees' rights to act as a Union representative and to receive Union
representation. However, the court already has concluded that effects
on these rights may not in this case be considered adverse effects
sufficient to satisfy the requirements of section 7106(b)(3) of the
Statute. Compare National Treasury Employees Union and U.S. Department
of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339,
351-52 (1992) (Member Armendariz concurring and dissenting in relevant
part) (in determining whether provisions establishing conditions for use
of official time by union officials and employees constituted
appropriate arrangements, a majority of the Authority considered whether
the provisions would foster employees' exercise of section 7102 rights),
petition for review filed sub nom. U.S. Department of the Treasury,
Bureau of Alcohol, Tobacco and Firearms v. FLRA, No. 92-1380 (D.C. Cir.
Aug. 27, 1992). See also National Treasury Employees Union and U.S.
Department of the Treasury, Financial Management Service, 45 FLRA 696,
701 (1992), petition for review filed sub nom. U.S. Department of the
Treasury, Financial Management Service, No. 92- . . . (D.C. Cir. Sept.
18, 1992). Accordingly, as no other adverse effects have been alleged,
and without addressing whether the Authority would conclude differently
in another case, we conclude here that the provision does not constitute
an arrangement within the meaning of section 7106(b)(3) of the Statute.
As it is undisputed that the provision directly interferes with the
Agency's right to assign work, it is nonnegotiable.
The portions of the Authority's previous order requiring the Agency
to rescind its disapproval of Article 24, Section 2(C) and Article 13,
Section 1(A), (B), (C), and (D) are vacated. The petition for review as
to Article 24, Section 2(C) and Article 13, Section 1(A), (B), (C), and
(D) is dismissed.
(*) The court also held that it was unclear why this provision should
not be found to excessively interfere with the Agency's right to assign
work. The court noted, in this regard, that determining the degree of
interference of the provision with the right depended on "how one
defines the right." 960 F.2d at 1074. The court stated that it could
not determine how the Authority defined the right. In view of our
conclusion that this provision is not an arrangement, we need not reach
this issue.
45 FLRA 1242
45 FLRA NO 125
NTEU, Chapter 97 and U.S. Dept. of the Treasury, Internal Revenue
Service, Fresno Service Center (Kanowitz, Arbitrator), Case No.
0-AR-2248 (Decided September 24, 1992)
7122(a)
7106(a)(2)(A) or (B)
7106(b)(1)
ARBITRATION EXCEPTION
MGT'S RIGHT TO LAY OFF, TO ASSIGN AND TO, DETERMINE ITS PERSONNEL
MGT'S RIGHT TO DETERMINE THE NUMBERS, TYPES AND GRADES OF EMPLOYEES
ESSENCE
The Arbitrator found that the Agency violated the parties' collective
bargaining agreement when it assigned "live" work as part of on-the-job
training to newly hired seasonal employees while experienced seasonal
employees were in nonwork status. The Authority concluded that the
Agency did not establish that the Arbitrator's award was deficient.
The Authority found that the Agency did not establish that the award
was contrary to law. The Authority concluded that the award did not
abrogate management's rights under section 7106(a)(2)(A) or (B) of the
Statute to lay off and retain employees, to assign work and to determine
the personnel by which agency operations shall be conducted. The
Authority noted that instead, the Arbitrator enforced a provision of the
parties' collective bargaining agreement which constituted an
arrangement for employees adversely affected by the exercise of
management's rights to lay off and retain employees, to assign work and
to determine personnel.
The Authority also found that the award ordering the Agency to
refrain from assigning live work to trainees while experienced seasonal
employees were in a nonwork status did not interfere with management's
right to determine the numbers, types or grades of employees assigned to
a work project.
The Authority construed the Agency's contentions that the Arbitrator
erroneously interpreted Article 14 of the parties' agreement as
contentions that the award failed to draw its essence from the
agreement. The Authority found, however, that the Agency did not
establish that the award failed to draw its essence from the parties'
agreement.
Case No. 0-AR-2248
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 97
(Union)
U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, FRESNO
SERVICE CENTER
(Agency)
September 24, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Leo Kanowitz filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Union filed an
opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' collective
bargaining agreement when it assigned "live" work as part of on-the-job
training to newly hired seasonal employees while experienced seasonal
employees were in nonwork status. For the reasons discussed below, we
conclude that the Agency has not established that the Arbitrator's award
is deficient under section 7122(a) of the Statute. Therefore, we will
deny the Agency's exceptions.
The Union filed a grievance alleging that the Agency violated Article
14 of the parties' collective bargaining agreement when it assigned
"live" work (actual work, as opposed to simulated cases) to newly hired
seasonal employees (trainees) while experienced seasonal employees were
in nonwork status. /1/ The grievance was not resolved and was submitted
to arbitration. The parties stipulated the following issue:
1. Did the agency violate Article 14, Section 1 or Section 2
of the collective bargaining agreement, and/or Section 17 of the
TEPS agreement, /2/ by placing new hires on live work without
ranking them on the release/recall list while seasonal employees
were released in 1990? If so, what shall the remedy be?
Award at 2.
The work of the Agency consists of processing tax returns. Because
this work is highly seasonal, employees are laid off (released) during
work shortages and are later recalled to work as the Agency's workload
increases. Seasonal employees are released and recalled based on their
positions on a release/recall list that is established pursuant to
Article 14 of the parties' agreement.
Before the Arbitrator, the Agency argued that Article 14 did not
require the Agency to rank trainees for release or recall before they
perform live work while other employees are in nonwork status. The
Agency claimed that Article 14 merely requires it to rank trainees for
the release/recall list when the Agency was also ranking other
employees. The Agency further argued that neither the Statute nor the
collective bargaining agreement places any limitations on its right to
assign work to any of its employees, including trainees.
The Arbitrator rejected the Agency's arguments and concluded that
Article 14 requires the Agency to rank trainees for release or recall
before they perform live work while other employees are in nonwork
status. In reaching this conclusion, the Arbitrator found that the
release/recall provisions of Article 14 were a "species of seniority
protection" for experienced seasonal employees. Id. at 21. He stated
that the provisions were designed to give senior seasonal employees,
with the necessary skills, a work preference over less senior seasonal
employees.
The Arbitrator also determined that the release/recall procedures in
Article 14 do not preclude the Agency from exercising its right to
assign work. The Arbitrator found that under the release/recall
procedures the Agency may not assign live work to trainees while higher
ranked seasonal workers are in nonwork status. He noted that instead of
releasing the trainees to nonwork status when they had completed
classroom training, the Agency had the alternative of retaining the
trainees and recalling the higher ranked seasonal employees. The
Arbitrator recognized the Agency's goal of improving its efficiency by
assigning live work to trainees as a part of their on-the-job training.
However, the Arbitrator concluded that the Agency could not "ignore its
obligations to the experienced seasonal employees under the release/
recall provisions of the (a)greement." Id. at 23.
The Arbitrator found evidence of harm to individual experienced
seasonal employees and, in his award, ordered the Agency to cease and
desist from training newly-hired seasonal employees on live work while
more experienced seasonal employees are involuntarily released to
nonwork/nonpay status and to construct a release/recall list for the
1990 training period in accordance with the procedures in Article 14 of
the collective bargaining agreement. The Arbitrator further ordered the
Agency to grant reimbursements for lost wages and benefits, including
interest and leave, to all seasonal employees who were improperly
released or not recalled as a result of the violation. Finally, the
Arbitrator ordered the parties to determine, through mutual
consultation, the nature and extent of the harm to individual seasonal
employees as a result of the Agency's violation of the agreement. The
Arbitrator stated that he would be available to conduct a hearing and
perform that task for them if their efforts do not succeed.
A. Positions of the Parties
1. The Agency
The Agency contends that the Arbitrator's award is deficient because
it is contrary to law. The Agency claims that in accordance with
section 7106 of the Statute, it has the rights "to assign work, to
layoff and retain employees, to determine the personnel by which
operations shall be conducted, and to determine the numbers, types and
grades of employees assigned to any work project." Exceptions at 8. The
Agency further claims that those rights include the right to assign work
to new employees and the rights to decide when to lay off and recall
employees and that nothing in the parties' agreement indicates that the
Agency bargained away these rights. The Agency asserts that there is no
contractual language that qualifies these rights in any way, and that,
therefore, it is the duty of the Arbitrator to protect these management
rights. By failing to uphold management's rights, the Agency claims
that the award is contrary to law.
The Agency maintains that the test, established in Department of the
Treasury, U.S. Customs Service and National Treasury Employees Union, 37
FLRA 309 (1990) (Customs Service), for determining whether a contractual
provision, as enforced by an arbitrator, abrogates the exercise of a
management right does not apply to this case. The Agency claims that
provision of the agreement that the Arbitrator "purport(ed) to
interpret" does not constitute an arrangement for employees adversely
affected by the exercise of a management right because the Agency "did
not agree to a course of action about when employees would be released
or recalled . . . ." Exceptions at 12-13.
According to the Agency, Article 14 merely requires the Agency to
place new employees on the bottom of the release/recall list at some
point. Although the Agency notes its disagreement with the Arbitrator's
determination of when it must place new employees on the list, it
excepts only to the Arbitrator's finding that Article 14 requires the
recall of certain employees before training new employees. The Agency
asserts that Article 14 is silent on this subject and, therefore, the
language "when it becomes necessary" that is contained in section 2A of
that provision can only mean "when management decides it is necessary to
release employees." Id. at 14 (emphasis omitted). The Agency
acknowledges that the provision is an arrangement or a procedure with
regard to its rights to lay off and retain employees set forth in
section 7106(a)(2)(A) of the Statute, but argues that the agreement
contains no arrangements with regard to other management rights.
Specifically, the Agency contends that because there is no evidence of
any mutual intent to qualify management's right to determine when to
recall employees, the provision is not an arrangement for employees
adversely affected by the exercise of management's right to assign work
set forth in section 7106(a)(2)(B).
If the Authority determines that Customs Service applies to this
case, the Agency claims that the Arbitrator's award abrogates
management's rights. The Agency contends that under the award, it
cannot assign live work to trainees while other seasonal employees are
in nonwork status under any circumstances and that this abrogates its
right to assign work. The Agency maintains that the right to assign
work includes the right to determine which employees to assign
particular work. It also maintains that the release/recall provisions
merely specify which individual employees will be released or recalled
and does not limit its right to decide which employees will be assigned
particular work. The Agency asserts that it has determined that
specific work should be assigned to new employees for training purposes
and that this decision is precisely the kind of decision protected by
the Statute and abrogated by the Arbitrator. Therefore, the Agency
argues that the award is contrary to law.
2. The Union
The Union contends that the Arbitrator's award is not contrary to
section 7106 of the Statute. Initially, the Union claims that the
contractual language enforced by the Arbitrator is plain and
unambiguous. According to the Union, Article 14 requires the Agency to
release employees who rank lowest on the release/recall list first and
those who rank highest last. Therefore, the Union contends that the
agreement required the Agency to place new hires at the bottom of the
list, releasing them before experienced seasonal employees. The Union
asserts that the dispute between the parties centered on when the
trainees must be placed on the release/recall list. According to the
Union, Article 14 procedures are used whenever there is a lack of work
for any seasonal employee at the Agency. The Union also claims that the
Arbitrator did not decide that experienced seasonal employees must
always be recalled before new employees are trained. Rather, the Union
maintains that the award applies only if trainees are performing live
work and other qualified employees ranked higher on the release/recall
list are in a nonwork status.
The Union further contends that Article 14 is an arrangement for
employees adversely affected by the Agency's rights to layoff and recall
employees and, as enforced by the Arbitrator, does not abrogate
management's rights. The Union argues that the agency is able to
release the necessary number of employees in the appropriate
classification and grade while retaining the most productive and
qualified employees. In this regard, the Union claims that the Agency
may assign skills and retain the best performers during layoff, assign
available work to qualified employees during layoff, and train new
employees or assign them live work. However, the Union asserts that the
Arbitrator determined that Article 14 procedures apply when employees
are in nonwork status and that the Agency may not retain employees at
the bottom of the release/recall list while employees who rank higher on
the list are in a nonwork status. In addition, the Union argues that
the Agency may assign live work to trainees, even if there is a work
shortage, as long as higher ranked employees on the release/recall list
are in pay status. The Union claims that the Agency's exception is "an
attempt to relieve one party from the unwelcome result of the purposeful
choice it made in negotiations." Opposition at 20.
B. Analysis and Conclusions
1. Management's Rights Under Section 7106(a)
For the following reasons, we find that the Agency has not
established that the award is contrary to law because it abrogates
management's rights under section 7106(a)(2)(A) or (B) of the Statute.
In Customs Service, we reexamined our approach to cases in which an
agency contends that an arbitrator's award, enforcing a provision of the
parties' collective bargaining agreement, is contrary to management's
rights under section 7106(a). We held that when an agency makes such a
contention we will examine, as appropriate, the provision enforced by
the arbitrator to determine: (1) if it constitutes an arrangement for
employees adversely affected by the exercise of a management right; and
(2) if, as interpreted by the arbitrator, it abrogates the exercise of a
management right. We explained that if it is evident that the provision
constitutes an arrangement and, as interpreted by the arbitrator does
not abrogate management's rights, the provision is within the range of
matters that can be bargained under the Statute. Accordingly, we held
that we will not find that such an award is contrary to law and we will
deny the exception. We also held that if the arbitrator's
interpretation does result in an abrogation of management's rights under
section 7106(a), the award will be found deficient as contrary to law,
but the contractual provision, susceptible to a different and
sustainable interpretation by a different arbitrator, will not be
affected.
We also noted in Customs Service that an arbitrator's award is
deficient if it fails to draw its essence from the parties' agreement.
We encouraged the parties to set forth plainly and precisely the
arrangements to which they have agreed for employees adversely affected
by the exercise of management's rights. We held that when a party
establishes that the arbitrator's enforcement of the agreement does not
represent a plausible interpretation of the agreement, or evidences a
manifest disregard of the agreement, we will find the award deficient.
In such a circumstance, however, the award will be found deficient
because it fails to draw its essence from the agreement, not because it
conflicts with management's rights.
Applying that approach in this case, we find that the Agency fails to
establish that the award abrogates its management rights to lay off and
retain employees, to assign work and to determine the personnel by which
agency operations shall be conducted under sections 7106(a)(2)(A) and
(B) of the Statute. Instead, the Arbitrator has enforced a provision of
the parties' collective bargaining agreement which constitutes an
arrangement for employees adversely affected by the exercise of
management's rights to lay off and retain employees, to assign work and
to determine personnel.
As conceded by the Agency, Exceptions at 13-14, Article 14 of the
parties' agreement addresses the concerns of employees adversely
affected by management's exercise of its rights to lay off and retain
employees. The Arbitrator stated that Article 14 was "designed to give
senior seasonal employees . . . a work preference over less senior
employees(.)" Award at 21. The Union argued that the procedures set
forth in Article 14 apply when there is a lack of work for any seasonal
employees in a branch of the Agency. The Arbitrator agreed and found
that the Agency violated the agreement when it assigned live work to
trainees while experienced seasonal employees remained in nonwork
status. In our view, the Arbitrator merely enforced a provision of the
parties' agreement that constitutes an arrangement for employees
adversely affected by the Agency's rights to lay off and retain
employees in response to seasonal changes in its workload. We find that
the Arbitrator enforced an arrangement that assures employees that they
will be laid off on a fair and objective basis.
Further, we find that Article 14, as interpreted and applied by the
Arbitrator, does not abrogate the Agency's rights to lay off and retain
employees. In Customs Service, the Authority held that an award
"abrogates" a management right when the award "precludes an agency from
exercising()" that right. Customs Service, 37 FLRA at 314. The
Arbitrator's award does not preclude the Agency from exercising its
rights to lay off and retain employees. Rather, the award only requires
the Agency to comply with the terms of Article 14, which provide
procedures for releasing and recalling seasonal employees. The Agency
remains free to determine when there is a shortage of work that
necessitates the execution of the release/recall procedures of Article
14. The Agency may also decide how many employees to release in the
appropriate classification and grade while retaining the most productive
and qualified employees. In addition, the Agency need only return
released employees to work status as the demand for them increases.
We further find that the award does not preclude the Agency from
exercising its right to assign work or from exercising its right to
determine the personnel by which agency operations shall be conducted.
Under the award, the Agency may continue to assign live work to new
employees as part of their training program as long as it does not
ignore its obligations to the experienced seasonal employees by failing
to follow the release/recall procedures contained in Article 14. As
interpreted by the Arbitrator, Article 14 permits the Agency to rank
employees based on their skills and to retain only the most qualified
employees during work shortages. Thus, it is the Agency that determines
those qualifications and assigns available work to qualified employees
during layoffs.
The Agency is correct in asserting that management rights under
section 7106(a) of the Statute cannot be waived or relinquished through
collective bargaining. See Southwestern Power Administration and
International Brotherhood of Electrical Workers, Local 1002, 22 FLRA
475, 476 (1986). However, where an arrangement for employees adversely
affected by the exercise of a management right has been negotiated by
the parties and, as interpreted and applied by an arbitrator, the
provision does not abrogate management's rights, that provision and its
enforcement do not constitute a waiver of management's rights. See
Customs Service, 37 FLRA at 316. Based on the above, we find no merit
in the Agency's contention that the award is deficient because it
abrogates management's rights under 7106(a) of the Statute.
2. Management's Right Under Section 7106(b)(1)
The Agency contends that the award is contrary to management's right
to determine the numbers, types, and grades of employees assigned to any
work project under section 7106(b)(1) of the Statute. For the reasons
that follow, we conclude that the Agency has failed to establish that
the award is deficient in this respect.
In U.S. Department of Health and Human Services, Social Security
Administration, Kansas City, Missouri and American Federation of
Government Employees, Local 1336, 37 FLRA 816, 824-27 (1990), we
reexamined our approach to cases in which an agency contends that an
arbitrator's award is contrary to management's rights under section
7106(b)(1). We stated that we will not apply the approach set forth in
Customs Service because section 7106(b)(1) concerns matters over which
an agency may elect to bargain and the abrogation standard of Customs
Service is not applicable to such matters. Id. at 824. Accordingly, we
held that when an agency claims that an award is contrary to section
7106(b)(1), we will examine the award and the record to determine
whether the award has merely enforced a provision of the parties'
collective bargaining agreement which, as interpreted by the arbitrator,
constitutes the parties' agreement on the section 7106(b)( 1) matter in
dispute. Id. at 824-25. We stated that if the award merely enforces
the parties' agreement, we will deny the exception. Id. at 825. We
also stated that we will find the award deficient when the award
interferes with the exercise of a management right under section
7106(b)(1) and does not constitute the enforcement of the parties'
agreement on the section 7106(b)(1) matter in dispute. Id.
Applying the foregoing to the instant case, we find that the award
ordering the Agency to refrain from assigning live work to trainees
while experienced seasonal employees are in a nonwork status does not
interfere with management's right to determine the numbers, types or
grades of employees assigned to a work project. Article 14, section 2
provides that when it becomes necessary to place any or all of the
seasonal employees in a branch in a nonwork status, the Agency will use
the procedures contained in that provision. In our view, Article 14,
section 2 represents the Agency's election to bargain over the type of
employees that are in positions covered by the release/recall provisions
of Article 14.
The Arbitrator found that under the provisions of Article 14,
trainees must be ranked below experienced seasonal employees on the
release/recall list. Consequently, the Arbitrator determined that when
there is a shortage of work, the parties' agreement does not permit the
Agency to assign the available work to trainees while higher ranked
seasonal employees are in a nonwork status. Insofar as the Agency is
arguing that the award interferes with its right under section 7106(b)(
1) to determine the numbers, types, and grades of employees in those
positions, the Arbitrator was merely enforcing the release/recall
provisions of the agreement, and the Agency is disagreeing with his
interpretation of those provisions. Thus, we conclude that the award
enforced a provision of the parties' agreement on the section 7106(b)(
1) matter in dispute and that the Agency has provided no basis for
finding the award deficient.
A. Positions of the Parties
1. The Agency
The Agency contends that the Arbitrator's award is deficient because
it is based on a nonfact. The Agency claims that the Arbitrator's
conclusion that the Agency must recall all seasonal employees in nonwork
status before it may assign live work to any trainee is an erroneous
interpretation of the release/recall provision of the agreement.
According to the Agency, there is nothing in the language of the
provision nor any evidence of bargaining history from which the
Arbitrator could have drawn such a conclusion.
The Agency asserts that there is nothing in the contractual language
that addresses when it will recall employees. Rather, the Agency claims
that the provision specifies only the order in which the Agency will
recall employees. In addition, the Agency claims that the Arbitrator
mischaracterized the release/recall list as a "'species of seniority
protection.'" Exceptions at 18, quoting Award at 21. The Agency asserts
that the release/recall list is established according to employees'
performance ratings and says nothing regarding their length of service.
Therefore, the Agency argues that the Arbitrator misunderstood the
purpose of the release/recall provision and based his finding on an
erroneous central fact, but for which a different result would have been
reached.
The Agency further contends that the award does not draw its essence
from the parties' agreement because the Arbitrator's interpretation of
the agreement is unreasonable. The Agency states that the Arbitrator
agreed with its argument that it would be unreasonable to require the
Agency to release trainees when they finish classroom training and are
ready to perform live work during on-the-job training. However, the
Agency asserts that the solutions to the Agency's dilemma proffered by
the Arbitrator are unreasonable and unworkable. The Agency claims that
it could not recall all the employees on the release list and assign
them other work in the branch or detail them to other branches because
there is no other work. The Agency argues that it would have already
recalled the employees on the list if there were other work at the
Agency or its branches. In addition, the Agency argues that it could
not justify placing the employees on the release/recall list on
administrative leave "(i)n this era of concern about waste and abuse(.)"
Exceptions at 20.
2. The Union
The Union contends that the Agency's assertion that the release/
recall provisions of Article 14 do not apply to training is without
merit. The Union explains that Article 14, section 2(B)(2)(c)
"specifically refers to 'newly-hired seasonal employees who do not have
performance appraisals'" and states that the Agency is to place those
employees on the bottom of the release/recall list until they are
evaluated for the next list. Opposition at 20. The Union asserts that
Article 14, section 2(B)(2)(d) requires the Agency to rank new employees
who do not have training test scores according to their OPM certificate
scores and that those employees must be placed below new hires with
training test scores. The Union argues that the ranking of trainees by
their training test scores or OPM certificate scores demonstrates that
Article 14 applies to trainees and requires that the Agency place those
employees on the current release/recall list before the next list is
created.
The Union also contends that the Agency has failed to prove that the
award does not draw its essence from the parties' agreement. The Union
claims that the Arbitrator did not require the Agency to detail
experienced seasonal employees to other branches, find other work for
them at the Agency or place them on administrative leave when employees
perform live work during slow periods. Instead, the Union argues that
the Arbitrator stated that these options were merely alternatives
available for the Agency in order to continue its preferred method of
training new employees without violating Article 14 of the agreement.
The Union claims that the Arbitrator interpreted the agreement to mean
only that the Agency must place new employees at the bottom of the
release/recall list before the new employees perform live work.
Therefore, the Union argues that the Agency's arguments constitute mere
disagreement with the Arbitrator's reasoning and conclusions and provide
no basis to set aside the award.
B. Analysis and Conclusions
We construe both of the Agency's contentions that the Arbitrator
erroneously interpreted Article 14 of the parties' agreement as
contentions that the award fails to draw its essence from the agreement.
To demonstrate that an award is deficient because it fails to draw its
essence from a collective bargaining agreement, a party must show that
the award: (1) cannot in any rational way be derived from the
agreement; (2) is so unfounded in reason and fact and so unconnected
with the wording and the purpose of the agreement as to manifest an
infidelity to the obligation of the arbitrator; (3) evidences a
manifest disregard for the agreement; or (4) does not represent a
plausible interpretation of the agreement. See, for example, U.S.
Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and
International Association of Machinists and Aerospace Workers, Local 39,
42 FLRA 322, 326 (1991).
We find that the Agency has not established that the award fails to
draw its essence from the parties' agreement. Rather, the Arbitrator's
conclusion that Article 14 required the Agency to rank trainees for
release and recall before they do live work while other seasonal
employees are in nonwork status has a reasonable basis in the parties'
agreement. In fact, Article 14, section 2(B)(2)(c) specifically
provides for the placement of newly hired seasonal employees on the
release/recall list.
Further, contrary to the Agency's contention, the Arbitrator did not
require the Agency to recall all seasonal employees in nonwork status
before it may fully train newly hired employees. Rather, the Arbitrator
concluded that the Agency may continue to assign live work to trainees
as part of their on-the-job training but, at the same time, may not
disregard its obligations to its experienced seasonal employees under
the release/recall provisions of Article 14. The award did not require
the Agency to detail experienced seasonal employees, place them on
administrative leave, or assign them to other work in the branch.
Rather, the Arbitrator merely suggested that the Agency's use of any of
these alternatives would not violate the release/recall provisions of
Article 14. In our view, the Arbitrator's award was not irrational,
unreasonable or implausible. Accordingly, we conclude that the Agency's
exception constitutes mere disagreement with the Arbitrator's
interpretation and application of the parties' agreement and provides no
basis for finding the award deficient.
The Agency's exceptions are denied.
(1) The text of relevant sections of Article 14 is found in the
Appendix to this decision.
(2) Section 17 of the Total Evaluation Performance System (TEPS)
requires in relevant part that "employees will be ranked for release/
recall consistent with the provisions of Article 14, subsection 2B2(c)
and (d) . . . ." Award at 6.
The relevant provisions of the collective bargaining agreement are as
follows:
Article 14
Release/Recall of Seasonal and Career/Career Conditional
Intermittent Employees
Section 2 Seasonal Release/Recall Procedures
A. Release of Seasonal Employees
When it becomes necessary to place any or all of the seasonal
employees in a branch . . . in a nonwork status, the Employer will
use the following procedures.
1. Canvass employees, in the skills area affected in the
branch to determine if a sufficient number of employees wishes to
accept a voluntary release.
2. The Employer has determined that if, as a result of the
canvass, more employees wish to be released than is necessary, the
employees with the earliest service computation dates will be
released. If the canvass does not result in a sufficient number
of voluntary applications for release, subsequent placement of
employees in nonwork status will be based on a ranking of
employees who possess the skills required to perform the remaining
work, as set forth in B below.
3. This ranking will be reflected on a list to be known as the
release/recall list (seasonals).
4. The Employer has determined that those who rank the lowest
on the release/recall list will be placed in a nonwork status
first and those ranking highest, last.
B. Ranking Seasonal Employees for Release
1. Employees performance appraisals based on the critical
elements and performance standards of their positions will be used
to rank employees as follows:
(a) add the numerical ratings for each critical element;
(b) divide the total in (a) above by the number of critical
elements;
(c) the result in (b) above is the number of points that are
assigned the performance evaluation for ranking purposes.
2. The release/recall list will be constructed as follows:
(a) list all seasonal employees in the appropriate
organizational area on a release/recall list according to the
score obtained in 1 above;
(b) those seasonal employees with the highest score will be at
the top of the list, those with the lowest at the bottom, and
employees will be informed of their position on the list;
(c) newly-hired seasonal employees who do not have performance
appraisals consistent with the provisions of subsection 4B1 of
this article will be placed on the bottom of the release/recall
list by their training test scores until such time as they are
evaluated for the next list;
(d) for those seasonal employees who do not have performance
appraisals or training test scores, ranking will be accomplished
by placing them on the list below those employees with training
test scores by their score on the OPM certificate.
3. The Employer has determined that ties in ranking will be
broken as follows:
(a) first by quantity effectiveness;
(b) then by overall quality effectiveness;
C. Recall of Seasonal Employees
1. The order of recall will be based on the release/recall
list.
2. The Employer has determined that those highest on the list
who possess the specific skills needed will be recalled first,
those lowest on the list, last.
45 FLRA 1234
45 FLRA NO 124
U.S. Dept. of the Air Force, Air Force Logistics Center, Tinker Air
Force Base, Oklahoma and AFGE, Local 916 (Fox, Jr., Arbitrator), Case
No. 0-AR-2209 (Decided September 24, 1992)
7122(a)
7106(a)(2)(B)
ARBITRATION EXCEPTIONS
MGT'S RIGHT TO ASSIGN WORK
ARBITRATOR EXCEEDED AUTHORITY
AWARD MODIFIED
The Arbitrator upheld a grievance alleging that the grievant was
improperly denied the opportunity for overtime work on three specified
weekends. The Arbitrator found that three employees in the Agency's
tool and parts crib were each entitled to 16 hours of overtime pay.
The Authority denied the Agency's exception that the Arbitrator's
award was contrary to section 7106(a)(2)(B) of the Statute. The
Authority found, however, that the Arbitrator exceeded his authority by
ordering the Agency to pay three employees in the tool and parts crib 16
hours of overtime pay each. The Authority modified the award to limit
the payment of overtime to the named grievant.
Case No. 0-AR-2209
U.S. DEPARTMENT OF THE AIR FORCE, AIR FORCE LOGISTICS CENTER, TINKER
AIR FORCE BASE, OKLAHOMA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916
(Union)
September 24, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Milden J. Fox, Jr. filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. The Union did
not file an opposition to the Agency's exceptions.
The Arbitrator upheld a grievance alleging that the grievant was
improperly denied the opportunity for overtime work on three specified
weekends. The Arbitrator found that three employees in the Agency's
tool and parts crib were each entitled to 16 hours of overtime pay.
For the following reasons, we deny the Agency's exception that the
Arbitrator's award is contrary to section 7106(a)(2)(B) of the Statute.
We find, however, that the Arbitrator exceeded his authority by ordering
the Agency to pay three employees in the tool and parts crib 16 hours of
overtime pay each. We will modify the award to limit the payment of
overtime to the named grievant.
The Agency's Aircraft Branch obtains its tools from tool and parts
cribs, which usually have a tool and parts attendant on duty. Normally,
when a tool and parts attendant is not on duty, and a sheet metal worker
or aircraft mechanic is allowed in the tool and parts crib, that
individual is directly supervised by the on-duty supervisor who
management considers to be "PAC certified" for issuing items from the
crib. Award at 4. The parties stipulated that "(w)ithout a Tool and
Parts Attendant on duty, there are many items that can turn up missing
from the Tool and Parts Crib." Id. at 3. During three weekends in May
1991, the Agency decided that a tool and parts attendant was not
required when a small number of sheet metal workers worked overtime.
Instead, management determined that on those three weekends the on-duty
supervisor could check out the tools from the tool and parts crib
involved. Approximately seven to ten sheet metal workers, ten aircraft
mechanics, and two supervisors worked the three weekends.
The grievant, a tool and parts attendant, filed the grievance in this
matter because he was not given the opportunity to work overtime on the
three weekends in question. The grievance was not resolved and was
submitted to arbitration.
The parties agreed on the following statement of the issue before the
Arbitrator:
Was the Grievant . . . improperly denied the opportunity for
overtime work on 4, 5, 11, 12, 18, or 19 May 1991 in accordance
with law, rule and regulation? If so what shall the remedy be?
Id.
The Arbitrator found that the tool and parts crib is "a vital link in
the system to prevent FOD (foreign object damage) in the repaired
aircraft." Id. at 5. The Arbitrator found that very strict control is
maintained and workers who merely misplace a tool or part that is later
found are disciplined as a measure to prevent FOD in the aircraft. The
Arbitrator found that due to the critical need to prevent tool
misplacement and FOD, the crib is normally inventoried both at the
beginning and toward the end of a shift, in addition to the usual
checkout procedure.
The Arbitrator found that on the three weekends in question the crib
was opened and used. The Arbitrator found that management's tool
inventory log for the days in question was altered so that it was
impossible to tell who had initialed the form. The Arbitrator concluded
that "a story jumps out that the workers were allowed into the Tool and
Parts Crib without the PAC certified supervisors being present." Id. at
6. The Arbitrator determined that this unsupervised work in the crib by
non-PAC certified sheet metal workers and aircraft mechanics was a
violation of Article 14, Section A of the parties' agreement. /*/ The
Arbitrator also concluded that because of the way the tool and parts
crib was operated on the days in question it would have been impossible
to carry out the requirements of certain regulations pertaining to tool
control and accountability.
The Arbitrator found that a tool and parts attendant, either the
grievant or one of his co-workers, was improperly denied the opportunity
for overtime on each of the three weekends involved. Although he
concluded that it had not been established which three employees should
have been offered the overtime, the Arbitrator stated that he could
determine that the grievant was not entitled to 48 hours of overtime.
Rather, he found that, at most, the grievant was entitled to 16 hours of
overtime for the weekend of May 4 and 5, 11 and 12 or 18 and 19, 1991.
As his award, the Arbitrator upheld the grievance, finding that the
Agency had committed the unwarranted personnel action of using non-PAC
certified bargaining unit employees to operate the tool and parts crib
on the days in question. The Arbitrator ordered the Agency to pay each
of three unspecified employees in the tool and parts crib for 16 hours
of overtime. Because the Arbitrator could not determine, based on the
record before him, which tool and parts attendants would have been
assigned overtime on each of the three weekends involved, the Arbitrator
ordered that the parties determine who should be paid 16 hours of
overtime. The Arbitrator retained jurisdiction for any issues arising
regarding the identity of the employees and the amounts due them.
A. Agency's Position
The Agency contends that the award violates management's right to
assign work as set forth in section 7106(a)(2)(B) of the Statute.
The Agency asserts that the Authority has consistently held that no
arbitration award may interpret or enforce a collective bargaining
agreement so as to improperly deny an agency the authority to exercise
its rights under section 7106 of the Statute. In support of its
assertion, the Agency cites 172d Infantry Brigade, Fort Richardson,
Alaska and American Federation of Government Employees, Locals 1712,
1834 and 1949, 19 FLRA 542 (1985), and U.S. Department of the Navy,
Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 35
FLRA 990 (1990). The Agency also cites American Federation of
Government Employees, AFL-CIO, International Council of U.S. Marshals
Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA
672 (1983) (Proposal 2), a negotiability decision in which the Authority
found that a proposal was inconsistent with management's right to assign
work because it precluded the agency from assigning supervisors work
that would otherwise be performed by unit employees on overtime.
The Agency contends that there was no opportunity for overtime
assignments for tool and parts attendants on the weekends in question
because management exercised its right not to offer overtime to any tool
and parts attendants. Conceding that the Arbitrator may have been
correct in finding that non-PAC certified personnel were allowed in the
tool and parts crib, the Agency argues that it was management's decision
as to who would perform the work in question. The Agency contends that
upholding the Arbitrator's award would have the effect of requiring
management to allow only tool and parts attendants to work in the crib.
The Agency asserts that such a restriction is a "work ownership
restriction" and violates management's right to assign work. Exceptions
at 8.
B. Analysis and Conclusions
We conclude that the Agency has failed to establish that the
Arbitrator's award violates its right to assign work under section
7106(a)(2)(B) of the Statute.
In Department of the Treasury, U.S. Customs Service and National
Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service), we
reexamined our approach to cases in which an agency contends that an
arbitrator's award enforcing a provision of the parties' collective
bargaining agreement is contrary to management's rights under section
7106 of the Statute. We held that when an agency makes such a
contention we will examine, as appropriate, the provision enforced by
the arbitrator to determine: (1) if it constitutes an arrangement for
employees adversely affected by the exercise of management's rights;
and (2) if, as interpreted by the arbitrator, it abrogates the exercise
of a management right. We explained that if it is evident that the
provision constitutes an arrangement and, as interpreted by the
arbitrator, does not abrogate management's rights, the provision is
within the range of matters that can be bargained under the Statute.
Accordingly, we held that we will not find that such an award is
contrary to law and we will deny exceptions that contest that the award
is inconsistent with management's rights. We also held that if the
arbitrator's interpretation does result in an abrogation of management's
rights under section 7106(a), the award will be found deficient as
contrary to law, but the contractual provision, susceptible to a
different and sustainable interpretation by a different arbitrator, will
not be affected.
The Arbitrator found that non-PAC certified workers were allowed into
the tool and parts crib without a PAC-certified supervisor present on
the weekends in question. The Agency does not dispute this finding.
The Arbitrator concluded that this was a violation of the Article 14,
Section A of the parties' agreement, which requires that overtime work
will be assigned to employees "who have the ability to perform the tasks
for which overtime is required . . . ." Award at 7 (emphasis omitted).
In this regard, the Arbitrator concluded that because of the way the
tool and parts crib was operated on the days in question it would have
been impossible to carry out the requirements of certain regulations
pertaining to tool control and accountability.
We find that Article 14, Section A of the parties' agreement
constitutes an arrangement for employees adversely affected by the
exercise of management's right to assign work on an overtime basis when
management chooses to assign that work to unqualified individuals. The
parties stipulated that "(w)ithout a Tool and Parts Attendant on duty,
there are many items that can turn up missing from the Tool and Parts
Crib." Award at 3. The record establishes that employees who misplace a
tool or part are subject to discipline. Thus, without a qualified tool
and parts attendant on duty during overtime assignments, there is a
greater likelihood that unit employees will be disciplined due to the
misplacement of tools and parts. In our view, in finding that on the
weekends in question employees were performing tasks that they were not
certified to perform, the Arbitrator was enforcing an arrangement
designed to protect unit employees from the adverse effects that could
flow from the Agency's decision to assign overtime without assuring
adequate coverage of such critical areas as the tool and parts crib.
We further find that the provision of the parties' agreement as
enforced by the Arbitrator does not abrogate the Agency's rights to
assign work or to determine the personnel by which Agency operations are
conducted. In Customs Service, we held that an award abrogates a
management right when the award "precludes an agency from exercising"
that right. Customs Service, 37 FLRA at 314. The Arbitrator's award in
this case does not preclude the Agency from exercising its rights.
First, we find that although the Agency's ability to assign any employee
it chooses to perform work in the tool and parts crib is somewhat
circumscribed, the Arbitrator's enforcement of the agreement provision
does not abrogate the exercise of the right to assign work under section
7106(a)(2)(B). Rather, the award permits the Agency to assign overtime
work as long as those assigned "have the ability to perform the tasks
for which overtime is required . . . ." Award at 7. The award leaves
unimpaired the Agency's right to assign a PAC-certified supervisor to
the tool and parts crib when the Agency determines that a tool and parts
attendant is not needed because of the small number of mechanics or
other employees working overtime. In addition, it is undisputed that
the Agency retains the right to determine which employees are qualified
to operate the tool and parts crib.
Further, we find that the Agency's reliance on Authority decisions to
support its view that the award is inconsistent with the exercise of
management's rights is misplaced. To the extent the Agency cites a
decision addressing the negotiability of a union proposal, we stated in
Customs Service that the test employed for determining the negotiability
of matters proposed for bargaining under section 7117 of the Statute is
different from that used in determining whether the enforcement of a
negotiated agreement abrogates the exercise of a management right. To
the extent the Agency relies on Authority decisions in arbitration cases
that predate Customs Service, we note that the test set forth therein
was designed to apply to that case and to all future cases involving
exceptions to awards that are claimed to conflict with the exercise of a
management right. See National Treasury Employees Union, Chapter 174
and U.S. Department of the Treasury, Customs Service, Region IV, 45 FLRA
1051 (1992) (the contractual provisions enforced by the arbitrator
relating to the equitable assignment of overtime work among bargaining
unit employees did not abrogate management's rights under section 7106
of the Statute).
A. Agency's Position
The Agency contends that the Arbitrator's award exceeded the
Arbitrator's authority because it goes beyond the scope of the matter
submitted to arbitration. The Agency argues that in awarding three
unspecified employees 16 hours of overtime pay, the Arbitrator awarded
relief to employees who were not encompassed by the grievance. The
Agency maintains that the issue submitted for arbitration by the parties
was limited to whether the named grievant was improperly denied the
opportunity for overtime on the three weekends in question.
B. Analysis and Conclusions
We conclude that the Arbitrator's award is deficient because the
Arbitrator exceeded his authority. An arbitrator exceeds his or her
authority when, for example, the arbitrator issues an affirmative order
that exceeds the scope of the matter submitted to arbitration or awards
relief to persons who did not file a grievance on their own behalf and
did not have the union file a grievance for them. See U.S. Department
of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force
Base, Oklahoma and American Federation of Government Employees, Local
916, 42 FLRA 680, 685 (1991).
The issue presented to the Arbitrator was agreed upon by the parties
and concerned whether the Agency had improperly denied a named grievant
the opportunity for overtime work on three specified weekends in May
1991. The stipulated issue did not refer to any other employees seeking
relief. Moreover, the stipulated issue referred to whether overtime was
due the grievant on May 4, 5, 11, 12, 18 or 19, thereby indicating that
the parties did not necessarily contemplate an award ordering overtime
for all those dates. Therefore, we conclude that the parties conferred
authority on the Arbitrator to resolve only the issue relating to the
individual who filed the grievance. In our view, the Arbitrator
exceeded that authority when he ordered that three unspecified tool and
parts attendants, who might not include the grievant, should be paid 16
hours of overtime pay. Consequently, that portion of the award is
deficient and will be struck from the award. Compare United States
Army, Academy of Health Sciences, Fort Sam Houston, Texas and National
Federation of Federal Employees, Local No. 28, 34 FLRA 598 (1990)
(arbitrator exceeded his authority by failing to confine his award to
the issue before him, which involved only the grievant) with Air Force
Space Division, Los Angeles Air Force Station, California and American
Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516
(1986) (arbitrator's award ordering a broad remedy was not deficient as
an excess of the arbitrator's authority where the parties had not agreed
on a statement of issues and had left the formulation of the issues to
the arbitrator).
The Agency's first exception is denied. The Arbitrator's award is
modified to strike any reference that three employees in the tool and
parts crib are to receive overtime for 16 hours and to substitute an
order that the Agency provide the grievant 16 hours of overtime pay if
the parties determine that the grievant would have been offered and
assigned overtime on May 4 and 5, May 11 and 12, or May 18 and 19, 1991.
(*) Article 14, Section A provides in pertinent part:
The opportunity for overtime assignments will be rotated equitably
at the lowest supervisory or work crew level, among employees, by
grade, who have the ability to perform the tasks for which
overtime is required (emphasis added in award).
Award at 7.
45 FLRA 1226
45 FLRA NO 123
GSA and AFGE, Council 236 (Kaplan, Arbitrator), Case No. 0-AR-2242
(Decided September 24, 1992)
7122(a)
ARBITRATION EXCEPTION
AWARD CONTRARY TO LAW
REMAND DENIED
The Arbitrator found that the Agency violated a provision of Public
Law 100-440, entitled "Treasury, Postal Service and General Government
Appropriations Act, 1989," by failing to hire 50 Federal Protective
Officers (FPOs) each fiscal year until it reached a prescribed staffing
level of 1000 FPOs. Despite the finding of a violation, the Arbitrator
declined to order a remedy as requested by the Union. The Authority
concluded that the Union failed to establish that the award was
deficient.
The Authority interpreted the Union's exception as an assertion that
the award was contrary to law. The Authority rejected the Union's
contention that the Arbitrator incorrectly interpreted section 7106 of
the Statute. Also, the Authority found no basis on which to grant the
Union's request to remand this case to the Arbitrator to provide a
remedy for the violation of Pub. L. 100-440. The Authority noted that
the Arbitrator specifically found that he could not provide a remedy
directing the Agency to comply with that law because such an order would
cause the Agency to violate the Anti-Deficiency Act. The Union did not
establish that the Arbitrator's refusal to grant a status quo ante
remedy in these circumstances was deficient or warranted an order
remanding this case to the Arbitrator.
Case No. 0-AR-2242
GENERAL SERVICES ADMINISTRATION
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 236
(Union)
September 24, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to an award of
Arbitrator Roger P. Kaplan filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Agency filed an
opposition to the Union's exception.
The Arbitrator found that the Agency violated a provision of Public
Law 100-440, entitled "Treasury, Postal Service and General Government
Appropriations Act, 1989," by failing to hire 50 Federal Protective
Officers (FPOs) each fiscal year until it reached a prescribed staffing
level of 1000 FPOs. Despite the finding of a violation, the Arbitrator
declined to order a remedy as requested by the Union. For the following
reasons, we conclude that the Union has failed to establish that the
award is deficient. Accordingly, we will deny the exception.
The grievance pertains to the Agency's alleged failure to abide by
Pub. L. 100-440 which, as relevant here, provides as follows:
Sec. 10 The Administrator of General Services is authorized and
directed to hire up to and maintain an annual average of not less
than one thousand full-time equivalent positions for Federal
Protective Officers. This shall be accomplished by increasing
staff levels at the end of the fiscal year 1988 at a rate of not
less than fifty positions per year until the full-time equivalency
of one thousand is attained by not later than fiscal year 1992.
When the parties could not resolve the dispute, it was submitted to
arbitration. The Union requested that the Arbitrator direct the Agency
to comply with the law and "apply a status quo ante remedy regarding the
core cities implementation until such time as the Agency complie(s) with
this Public Law." Award at 3. /1/
The Arbitrator framed the issues as follows:
1. Is the grievance arbitrable?
2. Did the Agency violate Section 10 of Public Law 100-440?
3. If so, did this violation adversely affect members of the
(Union's) bargaining unit?
4. If so, what should the remedy be?
Id. at 1.
The Arbitrator first rejected the Agency's claim that the dispute was
not arbitrable. In reaching this result, the Arbitrator examined the
relevant portions of the parties' collective bargaining agreement and
the pertinent sections of the Statute. He found that Article 2, section
1 of the agreement provides that the parties "'shall be governed by
existing or future laws.'" Id. at 7. He further found that the language
of Article 34, section 2 of the agreement permits the filing of
grievances over "'any claimed violation, misinterpretation, or
misapplication of any law . . . affecting conditions of employment.'"
Id. Further, the Arbitrator noted that "(t)he broad scope of the
grievance procedure (under the Statute) renders a presumption in favor
of arbitrability." Id. On the basis of these authorities, and noting
that the Union had alleged a violation of law, the Arbitrator concluded
that the grievance was arbitrable.
The Arbitrator then addressed whether the Agency had violated Pub.
L. 100-440. The Arbitrator found that the language of section 10 was
"clear and unambiguous(,)" and that it directed the Agency to hire 50
FPOs each year until a staffing level of 1000 FPOs was reached by the
end of fiscal year 1992. Id. at 9. The Arbitrator also found that the
parties were in agreement concerning the fact that the Agency did not
hire 50 FPOs every year since Pub. L. 100-440 was enacted and that the
Agency did not fulfill the congressional directive to maintain a
workforce of 1000 FPOs. The Arbitrator examined the Agency's testimony
concerning why it had failed to comply with the hiring requirement and
why the total complement of FPOs employed by the Agency had diminished.
Among the reasons advanced, the Arbitrator cited the asserted lack of
congressional funding after 1989, the disparity in salaries between FPOs
and their private sector counterparts, and the effect of the
Anti-Deficiency Act, 31 U.S.C. Section 1341, on the Agency's
expenditures of funds. The Arbitrator weighed these contentions against
the Union's assertions that Congress had appropriated the funds
necessary for the implementation of the law, and that the Agency had the
discretion within its budget to hire 1000 FPOs but failed to do so due
to "the inaction of officials within the Agency." Id.
After taking these arguments into consideration, the Arbitrator
concluded that the Agency violated Pub. L. 100-440 by failing to fulfill
the law's hiring requirements. In so finding, the Arbitrator rejected
the Agency's assertion that the lack of appropriated funds excused its
failure to comply with the hiring requirements. Rather, the Arbitrator
found that this contention "only provides an excuse as to why Public Law
100-440 was violated." Id.
In determining an appropriate remedy, the Arbitrator found that the
violation of law did not have any adverse effect on bargaining unit
employees. The Arbitrator noted the Union's assertion that the
violation resulted in the reassignment of bargaining-unit employees
pursuant to the core cities program. However, he concluded it would be
inappropriate to grant the Union's request for a status quo ante remedy.
The Arbitrator stated that under section 7106 of the Statute, the
Agency has the unilateral right to reassign employees and that he
"lack(ed) the authority to infringe upon such a clearly defined
management right." Id. at 10. The Arbitrator also found that because
the Statute and Article 3 of the parties' collective bargaining
agreement give the Agency an unfettered right to decide upon the number
of FPOs within its workforce, any adverse effect on the bargaining unit
due to the Agency's violation of Pub. L. 100-440 could not result in a
substantive remedy to the Union. /2/ In addition, the Arbitrator noted
that the parties had, in fact, negotiated and reached agreement over the
impact and implementation of the reassignment of FPOs. Finally, the
Arbitrator concluded that he could not direct the Agency to hire
additional FPOs because such an order would cause the Agency to violate
the Anti-Deficiency Act.
A. Union's Exception
The Union asserts that the award is deficient because the Arbitrator
misinterpreted the management rights provision of the Statute. The
Union claims that while the Arbitrator found that the Agency violated
section 10 of Pub. L. 100-440, the Arbitrator further found that
management had an unfettered right under section 7106 of the Statute and
Article 3 of the parties' agreement to determine the number of FPOs
within its workforce. The Union argues that the Agency does not have an
unfettered right to exercise its management rights and that "(t)here are
three (3) areas in which Congress put restraint(s) on (m)anagement
rights under (section 7106 of the Statute)." Exception at 3. The Union
asserts that the restraints placed on the exercise of management's
rights include compliance with law, and negotiations over both the
procedures and appropriate arrangements for employees adversely affected
by the exercise of management's rights. The Union also argues that the
Arbitrator's interpretation of the management rights section of the
Statute is inconsistent with the Authority's holding in U.S. Department
of Defense, Defense Mapping Agency, Aerospace Center, St. Louis,
Missouri and National Federation of Federal Employees, Local 1827, 43
FLRA 147 (1991) (Aerospace Center).
Further, the Union argues that the Agency's violation of Pub. L.
100-440 created an adverse effect on bargaining unit employees.
Specifically, the Union asserts that the only reason employees were
reassigned was because of the insufficient number of FPOs in the core
cities. The Union argues that if the Agency had complied with the law,
"the adverse effect would not have occurred." Exception at 5. The Union
asserts that the Arbitrator had the authority to order the Agency to
comply with the law and that a status quo ante remedy would be proper
under the circumstances. Consequently, the Union requests that the
Authority "remand this case to the Arbitrator to provide a remedy in
view of the violation." Id.
B. Agency's Opposition
The Agency contends that the award is not contrary to law and that
the Arbitrator correctly found that management was legally entitled
under section 7106(a) of the Statute to reassign FPOs under its core
cities program. The Agency also asserts that the Arbitrator was correct
in finding that he had no legal authority to order the Agency to hire
additional FPOs to reach the 1000 target level set forth in Pub. L.
100-440. The Agency claims that such an order would violate the
Anti-Deficiency Act and would directly interfere with management's right
to determine its budget under section 7106(a)(1) of the Statute.
With respect to the Union's claim that there was a bargaining
obligation under section 7106(b)(2) and (3) of the Statute, the Agency
maintains that the Arbitrator correctly found that the Agency bargained
over the impact and implementation of its core cities reassignment
program. Thus, it asserts that the Arbitrator "considered the issue of
arrangements and . . . concluded that (the Agency) met its obligations."
Opposition at 5. As to bargaining over procedures, the Agency argues
that an order directing the Agency to hire an additional 350 FPOs in
order to comply with section 10 of Pub. L. 100-440 would directly
interfere with management's rights and "is clearly not a procedure as
the Authority defines the term." Id.
Finally, the Agency asserts that if the Arbitrator committed an error
it was in finding that Pub. L. 100-440 "had legal effect beyond fiscal
year 1989." Id. at 6. In this regard, the Agency claims that this law
fails to meet the General Accounting Office's test for determining when
a provision in an appropriations act may be considered permanent
legislation. The Agency asserts that the legislative history of the law
demonstrates that it "was intended to be temporary legislation with no
force or affect (sic) beyond fiscal year 1989." Id. at 8. /3/
We interpret the Union's exception as an assertion that the award is
contrary to law. For the following reasons, we find that the Union has
failed to establish that the award is deficient. Consequently, we will
deny the exception.
First, we reject the Union's contention that the Arbitrator
incorrectly interpreted section 7106 of the Statute. While the
Arbitrator described management's right to determine the number of FPOs
within its workforce as unfettered, it is apparent from his decision
that he was cognizant of the Agency's obligation to bargain over
procedures and appropriate arrangements. Thus, the Arbitrator
specifically found that the Agency had fulfilled its obligations under
section 7106(b)(2) and (3) of the Statute when it bargained over the
impact and implementation of the core cities reassignment program. In
our view, the Union's exception constitutes mere disagreement with the
Arbitrator's reasoning and conclusions and provides no basis for finding
the award deficient. See, for example, U.S. Environmental Protection
Agency, Research Triangle Park, North Carolina and American Federation
of Government Employees, Local 3347, 43 FLRA 87, 95-96 (1991)
(disagreement with arbitrator's interpretation of contractual bargaining
rights provided no basis on which to find award deficient).
The Union's claim that the Arbitrator's award is inconsistent with
Aerospace Center is misplaced. In that case, we stated that where a
contract provision is a reiteration of the management rights provision
of the Statute the Authority will examine an award to ensure that the
interpretation of the provision is consistent with the Statute. The
Union has not established that the award here is in any manner
inconsistent with the Statute.
Next, we find no basis on which to grant the Union's request that we
remand this case to the Arbitrator to provide a remedy for the violation
of Pub. L. 100-440. The Arbitrator specifically found that he could not
provide a remedy directing the Agency to comply with that law because
such an order would cause the Agency to violate the Anti-Deficiency Act.
The Union did not except to this finding. In fact, the Union made no
arguments that the Arbitrator could issue a remedy ordering the Agency
to hire FPOs that would not be inconsistent with the Anti-Deficiency
Act. See generally, American Federation of Government Employees,
National Veterans Administration Council and U.S. Department of
Veterans Affairs, Washington, D.C., 41 FLRA 73, 80 (1991) (proposed
matter found not inconsistent with the Anti-Deficiency Act because
proposal required that funds necessary to provide administrative leave
to employees be appropriated before the proposal was effectuated). See
also Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, AFL-CIO,
32 FLRA 79, 88 (1988) (Authority rejected exception that award was
contrary to Anti-Deficiency Act insofar as award did not obligate agency
to pay any monies to employees). Moreover, the Union has not shown that
the granting of any remedy was required by Pub. L. 100-440 or any other
authority. See, for example, U.S. Department of Defense, Army Chemical
and Military Police Centers, Fort McClellan, Alabama and American
Federation of Government Employees, Local 1941, 39 FLRA 457, 462-64
(1991) (arbitrator not obligated to provide a remedy for a violation of
merit system principles).
The Arbitrator also addressed the Union's requested status quo ante
remedy. The Arbitrator essentially found that there was no obligation
to bargain over the decision to reassign employees and that the Agency
had fulfilled its bargaining obligation when it negotiated over the
impact and implementation of the core cities program. The Union has not
established that the Arbitrator's refusal to grant a status quo ante
remedy in these circumstances was deficient or warrants an order
remanding this case to the Arbitrator.
The Union's exception is denied. The Agency's exception is dismissed
as untimely.
(1) The core cities concept was developed by the Agency to reassign
personnel, among other things, to fill critical vacancies in "cities
(that) had inadequate staffing" in order for the Agency to fulfill its
security and law enforcement responsibilities. Award at 6.
(2) Article 3 of the agreement entitled "Management Rights" provides:
Section 1. Statutory Rights
In accordance with 5 U.S.C. 7106, the Employer retains the right:
1. To determine the mission, budget, organization, number of
employees, and internal security practices of the agency(.)
Award at 2.
(3) The Agency's contention regarding the continued effect of Pub.
L. 100-440 essentially constitutes an exception to the Arbitrator's
award. Because the exception was not filed within the time period
applicable to the filing of exceptions, it will be dismissed. See, for
example, American Federation of Government Employees, Local 2145 and U.
S. Department of Veterans Affairs Medical Center, Richmond, Virginia, 39
FLRA 1045, 1047-48 (1991) (dismissing an untimely exception included in
a party's opposition).
45 FLRA 1222
45 FLRA NO 122
NFFE, Local 1214 and U.S. Dept. of the Army Headquarters, U.S. Army
Training Center and Fort Jackson, Fort Jackson, South Carolina, Case No.
2035 (Decided September 23, 1992)
7105(a)(2)(E)
7106(a)(2)(B)
7106(b)(3)
NEGOTIABILITY DETERMINATION
MGT'S RIGHT TO CONTRACT OUT
APPROPRIATE ARRANGEMENTS
This case concerned the negotiability of one proposal which provided
that, when feasible, the Agency would contract out only when it was
economically efficient, effective to the Agency's mission, or in the
best interests of the Government. The Authority found that the proposal
was nonnegotiable.
The Authority concluded that, by incorporating the standards of
economic efficiency, mission effectiveness, and the best interests of
the Government, the disputed proposal established substantive criteria
governing the exercise of the Agency's right to contract out.
Therefore, the Authority found that the proposal directly interfered
with the Agency's right to contract out under section 7106(a)(2)(B) of
the Statute. The Authority added that the disputed proposal was not
intended to be an appropriate arrangement under section 7106(b)(3) of
the Statute.
Case No. 0-NG-2035
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1214
(Union)
U.S. DEPARTMENT OF THE ARMY, HEADQUARTERS, UNITED STATES ARMY
TRAINING CENTER AND FORT JACKSON, FORT JACKSON, SOUTH CAROLINA
(Agency)
September 23, 1992
Before Chairman McKee and Members Talkin and Armendariz.
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 which provides that, when feasible,
the Agency will contract out only when it would be economically
efficient, effective to the Agency's mission, or in the best interests
of the Government. For the following reasons, we find that the proposal
is nonnegotiable.
The Employer agrees that, when feasible, contracting out of its
functions and/or missions should only occur when it is
demonstrated that such contracting out would be economically
efficient, effective to the mission, or in the best interest of
the Federal Government. III. Positions of the Parties
A. Agency
The Agency contends that the proposal directly and excessively
interferes with its right under section 7106(a)(2)(B) to contract out.
The Agency argues that the proposal does not merely require the Agency
to comply with Office of Management and Budget (OMB) Circular A-76 but
that the proposal "would remain in effect even if the OMB Circular is
modified." Statement of Position at 3. According to the Agency,
inclusion of the term "when feasible" does not render the proposal
negotiable because, in the Agency's view, every contracting out decision
"must comply with the proposal's requirement(s) . . . ." Id.
The Agency also contends that the proposal is not intended as an
arrangement "to lessen the adverse affects" of a decision to contract
out. Id. at 4. According to the Agency, the proposal "negates
management's right to contract out and does not concern any arrangements
for employees affected by the implementation of that right." Id.
Moreover, the Agency argues that the proposal excessively interferes
with management's right to contract out because it would "completely
prohibit() the (Agency) from contracting out work unless i( t) can be
shown that doing so meets the restrictions contained in the proposal."
Id.
B. Union
The Union contends that the Agency's right to contract out is
restricted by applicable law and regulation, including OMB Circular
A-76, and that, based on the Authority's decision in National Treasury
Employees Union and U.S. Department of the Treasury, Internal Revenue
Service, 42 FLRA 377 (1991) (IRS), petition for review filed sub nom.
Department of the Treasury, Internal Revenue Service v. FLRA, No.
91-1573 (D.C. Cir. Nov. 25, 1991), such law and regulation may be
enforced through arbitration. The Union claims that as OMB Circular
A-76 requires that "all contracting-out . . . must be in the public
interest(,) . . . efforts of this nature cannot be in the public
interest when contracting-out is not found to be economically efficient,
effective, or in the best interest of the Federal Government." Petition
for Review at 2. According to the Union, "the proposal (does) not
introduce or impose any limitation or restriction that is not already
imposed upon the (A)gency through (applicable regulations) . . . ."
Reply Brief at 3.
Finally, the Union states that the proposal is "not intended to
address the specific or adverse impact associated with contracting out
decisions(.)" Id. at 4. Rather, the Union states that it "possesses a
number of options that have been negotiated, and are presently under
negotiation, that are designed to address specific or adverse impact, or
redress adverse impact suffered by employees when management applies or
executes its 7106 rights in a legal, extraordinary, or extralegal
manner." Id.
Proposals that establish substantive criteria governing the exercise
of a management right directly interfere with that right. See, for
example, National Federation of Federal Employees, Local 2050 and
Environmental Protection Agency, 36 FLRA 618, 625-27 (1990). However,
insofar as management rights under section 7106(a)(2) are concerned,
proposals that merely require compliance with applicable laws do not
directly interfere with the exercise of such rights. IRS. The term
"applicable laws" in section 7106(a)(2) includes, among other things,
rules and regulations, including OMB Circular A-76, which have the force
and effect of law. Id. Consequently, proposals merely requiring
compliance with OMB Circular A-76 do not directly interfere with
management's right to contract out. American Federation on Government
Employees, AFL-CIO, Department of Education Council of AFGE Locals and
Department of Education, 42 FLRA 1351, 1361-63 (1991) (Department of
Education); AFSCME Local 3097 and Department of Justice, Justice
Management Division, 42 FLRA 587 (1991), petition for review filed sub
nom. Department of Justice, Justice Management Division v. FLRA, No.
91-1574 (D.C. Cir. Nov. 25, 1991).
In this case, the disputed proposal permits the Agency to contract
out only if the Agency can demonstrate that such action "would be
economically efficient, effective to the mission, or in the best
interest of the Federal Government." In this regard, we reject the
Union's contention that, based on IRS, the proposal does not directly
interfere with the Agency's right to contract out because it merely
implements OMB Circular A-76. Nothing in the wording of the disputed
proposal refers to or cites OMB Circular A-76 and we have no basis on
which to conclude that the proposal constitutes a restatement of any
provisions in the Circular. Compare Department of Education, 42 FLRA at
1361-63 (a proposal which obligated the agency to conform to a
particular requirement of OMB Circular A-76 found not to directly
interfere with the agency's right to contract out in circumstances where
the proposal merely restated the requirement of the Circular and where
the union stated that the proposal would no longer have any effect if
the Circular were modified to remove the requirement in question). We
find the Union's explanation of the proposal inconsistent with its plain
wording and, as a result, we do not adopt the Union's explanation. See,
for example, National Association of Government Employees, Federal Union
of Scientists and Engineers, Local R1-144 and U.S. Department of the
Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA
730, 734 (1991).
We conclude that, by incorporating the standards of economic
efficiency, mission effectiveness, and the best interests of the
Government, the disputed proposal establishes substantive criteria
governing the exercise of the Agency's right to contract out.
Therefore, the proposal directly interferes with the Agency's right to
contract out under section 7106(a)(2)(B) of the Statute. In reaching
this conclusion we reject the Union's contention that inclusion of the
phrase "when feasible" renders the proposal negotiable. The inclusion
of such wording does not change the fact that management's discretion to
contract out is restricted. For example, International Federation of
Professional and Technical Engineers, Local 4 and Department of the
Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31,
37-38 (1990).
Finally, it is clear that the disputed proposal is not intended to be
an appropriate arrangement under section 7106(b)(3) of the Statute. In
this regard, the Union expressly states that its proposal is "not
intended to address the specific or adverse impact associated with
contracting out decisions(.)" Reply Brief at 4. According to the Union,
it "possesses a number of options that have been negotiated, and are
presently under negotiation, that are designed to address specific or
adverse impact, or redress adverse impact suffered by employees when
management applies or executes its 7106 rights in a legal,
extraordinary, or extralegal manner." Id.
As the disputed proposal directly interferes with the Agency's right
to contract out under section 7106(a)(2)(B) of the Statute, it is
nonnegotiable. Accordingly, we will dismiss the Union's petition.
The Union's petition for review is dismissed.
45 FLRA 1213
45 FLRA No. 121
AFGE, Local 2452 and U.S. Dept. of Health and Human Services, Social
Security Administration District Office, Huntington Park, California,
Case No. 0-NG-2038 (Decided September 18, 1992)
7105(a)(2)(E)
7106(a)(1)
7106(b)(2)
7106(b)(3)
NEGOTIABILITY DETERMINATION
INTERNAL SECURITY PRACTICES
ALLEGATION OF NONNEGOTIABILITY
NEGOTIABLE PROCEDURES
APPROPRIATE ARRANGEMENTS
This case concerned the negotiability of a single proposal which
addressed the Agency's decision to install a combination lock on the
employees' entrance to an Agency office. The Authority found that the
proposal was negotiable as an appropriate arrangement under section
7106(b)(3) of the Statute.
Initially, the Union argued that the Agency's allegation of
nonnegotiability failed to identify any law, rule, or regulation with
which the disputed language alleged to conflict and was, therefore,
defective and should bar the Agency from asserting nonnegotiability.
The Authority rejected the Union's argument. The Authority noted
that neither the Statute nor the Authority's Rules and Regulations
require that an allegation of nonnegotiability be made with any
particular degree of specificity. The Authority further added that the
only requirement that an agency specifically support its allegation of
nonnegotiability applies after the agency has been served with a
petition for review and files a statement of position explaining its
reasons for declaring the proposal nonnegotiable.
The Authority found that the proposal directly interfered with the
Agency's right to determine its internal security practices, and that it
was not a negotiable procedure under section 7106(b)(2) of the Statute.
However, the Authority found that the proposal was intended as an
arrangement for employees adversely affected by the exercise of a
management right.
The Authority concluded that the benefits to the employees and
outweighed the negative effect on management's right. Accordingly, the
Authority found that the proposal did not excessively interfere with
management's right to determine its internal security practices and was
negotiable as an appropriate arrangement under section 7106(b)(3) of the
Statute.
Case No. 0-NG-2038
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2452
(Union)
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; SOCIAL SECURITY
ADMINISTRATION, DISTRICT OFFICE, HUNTINGTON PARK, CALIFORNIA
(Agency)
September 18, 1992
Before Chairman McKee and Members Talkin and Armendariz. /1/
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 a
single proposal which addresses the Agency's decision to install a
combination lock on the employees' entrance to an Agency office.
For the following reasons, we find that the proposal is negotiable as
an appropriate arrangement under section 7106(b)(3) of the Statute.
Initially, the Union argues that the Agency's allegation of
nonnegotiability is "defective and should bar the (Agency) from
asserting non-negotiability." Reply Brief at 9. The Union asserts that
the allegation "fails to identify any law, rule, or regulation with
which (the) disputed language is alleged to conflict and the basis of
such alleged conflict(.)" Id.
We reject the Union's argument. The Agency's allegation stated that
the disputed proposal was nonnegotiable "because it interferes with
management's right to determine its internal security practices."
Attachment 2 to Petition for Review at 2. Moreover, neither the Statute
nor the Authority's Rules and Regulations require that an allegation of
nonnegotiability be made with any particular degree of specificity. The
only requirement that an agency specifically support its allegation of
nonnegotiability applies after the agency has been served with a
petition for review and files a statement of position explaining its
reasons for declaring the proposal nonnegotiable. See, for example,
National Association of Government Employees and U.S. Department of
Defense, National Guard Bureau, Connecticut Army and Air National Guard,
Hartford, Connecticut, 40 FLRA 33, 36 (1991) (Connecticut National
Guard). Accordingly, the Agency's allegation is sufficient, and the
petition is properly before us. See Connecticut National Guard, 40 FLRA
at 36-37.
The Union representative will be given the combination to the lock
and will be given any subsequent changes to the combination. IV.
Positions of the Parties
A. Agency
The Agency contends that the proposal directly and excessively
interferes with its right under section 7106(a)(1) of the Statute to
determine its internal security practices. The Agency states that, when
a combination lock was installed on the employee access door at the new
office location, it decided that "limiting knowledge of the combination
to only those individuals who work in the office would further enhance
their personal security and also help to safeguard Agency documents."
Statement of Position at 9. The Agency notes that the Authority has
held that "it will not question the extent of the measures used by an
agency to achieve its security objectives as long as they are reasonably
related to the purpose for which the particular practice is adopted."
Id. at 11. The Agency contends that it has established the "link
between the objective of safeguarding employees and property and its
decision to permit unrestricted access to the office only to employees
who work there." Id. (emphasis in original). Consequently, the Agency
asserts, the requirement to provide a Union representative, who is not
employed in the office, with the combination to the employees' entrance
directly interferes with the Agency's right to determine its internal
security practices. The Agency argues that the proposal is not an
appropriate arrangement under section 7106(b)(3) of the Statute because
"any possible adverse impact on the employee is minimal and, if the
proposal were adopted, is outweighed by the total abrogation of
management's right to determine its internal security practices." Id. at
12.
B. Union
The Union asserts that its representative is admitted to the office,
upon his or her request, by office employees. Therefore, the Union
asserts, the proposal is "limited to substituting the (U)nion
representative's possession of the combination for the purely
ministerial process of admitting the (U)nion representative . . . upon
his or her demand(.)" Reply Brief at 28. In the Union's view, the
proposal "does not involve" the Agency's security policy because it
requires that management "provide the combination only for entry that
the (Agency) separately authorized." Idd. The Union also contends that
the proposal is a negotiable procedure under section 7106(b)(2) of the
Statute.
As an alternative, the Union maintains that the proposal is an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. The Union contends that the proposal would benefit employees
by ameliorating the following adverse effects: (1) "delays and
additional procedural requirements for meeting with the (U)nion
representative" when an office employee must respond to the
representative's request for admittance; (2) interruptions to office
employees' or supervisors' work caused by the need to admit the
representative; (3) decreased effectiveness of the health and safety
program because the representative can no longer visit the office
unannounced; and (4) "diminution of the equal status" of the Agency and
the Union resulting from the restriction on the representative's ability
to enter the office. Id. at 23-24. The Union asserts that, when
weighed against the benefits afforded to employees, the proposal's
interference with management's right to determine its internal security
practices is "amorphous and minimal." Id. at 25. In the Union's view:
(t)he most obvious reason that providing the combination to the
(U)nion representative is insignificant to (the) exercise of the
management right is that, whether the combination is provided or
not, the (U)nion representative will be able to enter the office
on each occasion that she attempts to do so. This means that the
outcome, in terms of the employer's objective of ending
unrestricted entry through the employee entrance, is not affected
at all by providing the combination to the (U)nion
representative(.)
Id. at 26 (emphasis in original).
An agency's determination of when and how employees gain access to
agency facilities is within the agency's right to determine its internal
security practices under section 7106(a)(1) of the Statute, where that
determination is supported by a showing of a reasonable connection to
internal security considerations. Patent Office Professional
Association and U.S. Department of Commerce, Patent and Trademark
Office, 41 FLRA 795, 837 (1991) (Patent and Trademark Office). Here,
the Agency states that it limits dissemination of the employees'
entrance combination at the Downey Branch Office exclusively to
employees of the Downey Office in order to safeguard employees and
property. In our view, there is a reasonable relationship between
limiting disclosure of the lock combination and the Agency's security
concerns. Accordingly, we find that limitation to be within the
Agency's right to determine its internal security practices. See id.
The proposal requires the Agency to provide the combination to the
Agency employee who is designated by the Union to represent employees at
the Downey Office. In this regard, the record indicates that the Union
representative "normally assigned to service bargaining unit members in
the Downey (Office) is an 'offsite' representative; that is, she or he
is employed at another (Agency) office." Reply Brief at 6-7. As the
proposal would obligate the Agency to provide an Agency employee not
assigned to the Downey Office with the combination, it directly
interferes with the Agency's right to determine its internal security
practices. As such, the proposal is not a negotiable procedure under
section 7106(b)(2) of the Statute. See, for example, National
Federation of Federal Employees, Local 405 and U.S. Department of the
Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA
1112, 1127 (1991).
In deciding whether a proposal constitutes an appropriate
arrangement, we must determine whether the proposal is: (1) intended as
an arrangement for employees adversely affected by the exercise of a
management right; and (2) appropriate because it does not excessively
interfere with the exercise of that right. National Association of
Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA 24, 31 (1986) (KANG).
Here, the Agency has exercised its right to determine its internal
security practices by limiting disclosure of the entry combination to
employees assigned to the Downey Office. The Union representative, who
is an Agency employee not assigned to the Downey Office, does not have
the combination. According to the Union, the Agency's new security
policy adversely affects the representative's access to unit employees,
interrupts employees' and supervisors' work by requiring that the
representative be admitted by someone in the office, impairs the
effectiveness of unannounced Union safety inspections, and creates an
unequal status between the Union and management. Accordingly, we find
that the proposal is intended as an arrangement for employees adversely
affected by the exercise of a management right.
To determine whether a proposal excessively interferes with a
management right, we weigh "the competing practical needs of employees
and managers" to ascertain whether the benefit to employees flowing from
the proposal outweighs the proposal's burden on the exercise of the
management right or rights involved. KANG, 21 FLRA at 31-32. In
weighing such needs in this case, we note initially that the proposal
does not concern the Union representative's admittance to the office
but, rather, the method of admittance. It is undisputed, in this
regard, that the representative is admitted to the office through the
employee entrance whenever he or she so requests. However, currently a
Downey Office employee or manager must admit the representative.
Accordingly, disclosing the combination to the Union representative
would benefit employees by eliminating a need to interrupt their work to
admit the representative. Disclosure also would eliminate delays in the
conduct of representational functions and would facilitate the
representative's ability to make unannounced health and safety
inspections of the office.
On the other hand, the proposal's burden on the Agency's internal
security policy is slight. The Agency would be required to provide the
combination only to a single, identified, Agency employee who is not
assigned to the Downey Office. Moreover, this employee has a need to
conduct business regularly at the Downey Office and currently has access
on request through the employees' entrance. In addition, the Agency
does not claim that its policy is aimed at monitoring when the Union
representative is in the Downey Office or preventing the
representative's unescorted access to the office. Furthermore, the
Agency does not assert an interest in controlling when the
representative may gain access to the office, and it appears from the
record that the Agency's security policy is not intended to bar the
representative's admittance to the Downey Office during nonduty hours.
See Statement of Position at 13-14 (Agency states that "special
arrangements could be made to admit the offsite representative at a time
when the office normally is not staffed"). Finally, we note that the
proposal does not preclude the Agency's changing the combination at any
time. For example, the Agency could install a new combination when an
employee of the Downey Office is permanently or temporarily reassigned
elsewhere, or when the Union appoints a new representative. The
proposal requires only that the Union representative for the Downey
Office at the time of the change receive the new combination to the
employee entrance.
On balance, we conclude that the benefits to the employees and the
Union representative of providing the representative with the
combination to the employees' entrance outweigh the negative effect on
management's right to limit disclosure of the combination. Accordingly,
we find that the proposal does not excessively interfere with
management's right to determine its internal security practices and is
negotiable as an appropriate arrangement under section 7106(b)(3) of the
Statute. Compare Patent and Trademark Office, 41 FLRA at 836-38 (part
of provision allowing authorized employees access to their work areas at
all times found not to excessively interfere with management's right to
determine internal security practices).
The Agency must upon request, or as otherwise agreed to by the
parties, bargain concerning the disputed proposal. /2/
Concurring and Dissenting Opinion of Member Armendariz
I concur with my colleagues' opinion to the extent that it finds that
the proposal directly interferes with the Agency's right to determine
its internal security practices under section 7106(a)(1) of the Statute.
I also concur with my colleagues' opinion to the extent that it finds
that the proposal is intended as an arrangement for employees adversely
affected by the Agency's exercise of its right to determine its internal
security practices under section 7106(a)(1) of the Statute. However, I
respectfully dissent from my colleagues' opinion to the extent that it
finds that the intended arrangement is appropriate and, thus,
negotiable. I would find that the proposal excessively interferes with
the Agency's right under section 7106(a)(1) of the Statute to determine
its internal security, and; therefore, the proposal does not constitute
a negotiable appropriate arrangement.
In deciding whether an arrangement is appropriate, the Authority must
determine whether it excessively interferes with the exercise of a
management right. National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (KANG). In
making that determination, the Authority must weigh the competing
practical needs of employees and managers. Id. at 31-33.
The Union claims that under the Agency's current internal security
practice, whenever an offsite-employee representative desires access to
the secured work site, a unit employee or a supervisor must interrupt
his work to admit the offsite-employee representative and, as a result,
access is delayed. The Union contends that disclosure of the
combination to the offsite-employee representative would be beneficial
because it would eliminate: (1) the need for work-site employees and
supervisors to interrupt their work to admit the offsite-employee
representative; and (2) delays in the conduct of representational
functions. Finally, the Union contends that disclosure of the
combination to the offsite-employee representative would be beneficial
because it would facilitate the offsite-employee representative's
ability to make unannounced health and safety inspections of the office.
Based on the record before the Authority in this case, it appears that
any adverse impact that unit members experience as a result of
management's exercise of its right under section 7106(a)(1) of the
Statute to determine its internal security is minimal, as is the benefit
derived from the proposed arrangement.
The Agency states that, in order to safeguard the personal security
of its work force and to safeguard its documents, it decided to restrict
access to the combination to onsite employees. The Agency, in order to
achieve that objective to the maximum extent possible, has enforced the
restriction by refusing to give the combination to any offsite
employees, including offsite management and offsite-employee union
representatives. The Agency states that limiting access to the
combination to onsite employees enhances its internal security. The
proposal, as plainly worded, would require the Agency to provide the
combination to the Union's designated representative, regardless of
whether or not that representative is an onsite employee. Disclosure of
the combination to a non-onsite employee would erode the Agency's
ability to safeguard the personal security of its work force during
working hours and to safeguard its documents both during working and
nonworking hours.
I cannot join with my colleagues in characterizing the intrusion of
the Union's proposal on the Agency's internal security policy as
"slight". See American Federation of Government Employees, Local 2452
and U.S. Department of Health and Human Services, Social Security
Administration, District Office, Huntington Park, California, 45 FLRA
No. 121 at 5 (1992). In support of its conclusion that the intrusion of
the Union's proposal on the Agency's internal security policy is
"slight", the Majority states that: (1) the offsite-employee
representative "currently has access on request through the employees'
entrance(;)" and (2) "it appears that the Agency's policy is not
intended to bar the representative's admittance to the Downey Office
during nonduty hours(;)" however, in making this observation, the
Majority fails to appreciate that it is precisely the "access on
request" aspect of the Agency's internal security policy that the Agency
is insisting on in order to maintain the integrity of its internal
security policy. Id. As to the Majority's latter point, the Agency
states that even though it does not appear reasonable or necessary for
the offsite-employee representative to have access to the Downey Office
during nonduty hours, it would make special arrangements to provide
access on request. Therefore, based on the record before the Authority
in this case, it appears that the extent of the impact of the proposed
arrangement on management's exercise of its right under section
7106(a)(1) of the Statute to determine its internal security practices
is significant.
On balance, I conclude that the negative impact on the Agency's
exercise of its right to determine its internal security practices is
greater than the minimal benefits derived from the Union's proposed
arrangement. In this regard, I note that in Patent Office Professional
Association and U.S. Department of Commerce, Patent and Trademark
Office, 41 FLRA 795 (1991) (Patent and Trademark Office), the Authority
found that part of a provision allowing access by "'authorized'
professionals . . . to their 'designated work areas'" was negotiable as
an appropriate arrangement in part because the proposal still "enable(
d) the Agency to exercise control over who has access and when that
access may be used." Id. at 838 (emphasis added). The instant proposal
is clearly distinguishable from the proposal in Patent and Trademark
Office because the instant proposal requires access without request by
unauthorized personnel to onsite work areas, and thus prevents the
Agency from exercising control over: (1) when offsite representatives
have access to the worksite; and (2) what access may be had, i.e., the
off-site representative will have unrestricted time and area access.
Accordingly, I find that the proposal excessively interferes with the
Agency's right to determine its internal security practices and is,
therefore, nonnegotiable.
(1) The separate opinion of Member Armendariz, concurring in part and
dissenting in part, appears at the end of this decision.
(2) In finding the proposal to be negotiable, we make no judgment as
to its merits.
45 FLRA 1204
45 FLRA No. 120
NFFE, Forest Service Council and U.S. Dept. of Agriculture, Forest
Service, Washington, D.C., Case No. 0-NG-1958 (Decided September 18,
1992)
7105(a)(2)(E)
5 C.F.R. Section 551.431(a)(2)
5 C.F.R. Section 551.431(a)(1)
NEGOTIABILITY DETERMINATION
FIRE CAMPS
STANDBY PAY
FLRA REVIEW OF NEGOTIABILITY ISSUES
CONSTITUTIONAL ISSUE
This case concerned the negotiability of several sections of a
proposal pertaining to standby pay for employees assigned to a closed
fire camp. Fire camps are established as temporary headquarters in
order to supervise fire suppression. The camps are closed when the
management official in charge of a particular fire, typically designated
as the Incident Commander, decides that closure is necessary to minimize
disruption to the community located near the site of the fire camp.
The Authority concluded that the disputed sections of the proposal
were inconsistent with 5 C.F.R. Section 551.431(a)(2), and therefore,
outside the duty to bargain under section 7117 of the Statute. The
Authority rejected the Union's contention that this case was governed by
the provisions of Section 551.431(a)(1) and that bargaining unit
employees who were restricted to the fire camps and could not use their
time effectively for their own purposes were entitled to standby pay.
The Authority found that the Union's claim of a constitutional
violation was not properly before the Authority in this proceeding. The
Authority noted that in resolving negotiability issues under section
7117 of the Statute, the Authority examines whether proposals are
inconsistent with laws, rules, or regulations. In this case, there was
no contention that a proposed matter was inconsistent with the
Constitution. Rather, the thrust of the Union's argument was that the
Agency's refusal to compensate employees at closed fire camps was a
violation of their constitutionally protected liberty interests. Such a
claim is not appropriately adjudicated in a negotiability proceeding.
Case No. 0-NG-1958
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FOREST SERVICE COUNCIL
(Union)
U.S. DEPARTMENT OF AGRICULTURE, FOREST SERVICE, WASHINGTON, D.C.
(Agency)
September 18, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on a negotiability appeal filed
under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute). It concerns the negotiability of
several sections of a proposal pertaining to standby pay for employees
assigned to a closed fire camp. /1/ Fire camps are established as
temporary headquarters in order to supervise fire suppression. The
camps are closed when the management official in charge of a particular
fire, typically designated as the Incident Commander, decides that
closure is necessary to minimize disruption to the community located
near the site of the fire camp.
For the following reasons, we conclude that the disputed sections of
the proposal are inconsistent with 5 C.F.R. Section 551.431(a)(2).
Therefore, they are outside the duty to bargain under section 7117 of
the Statute.
Closed Fire Camps --
12.5 -- Off Shift Time. The degree of control the Forest
Service exercises over regular Government and casual employees
during off shift hours depends upon the urgency of the emergency
situation.
1. Employees may be restricted to an incident base or any
other camp only when the Incident Commander or other authorized
management official requires their presence for work or to be in a
state of readiness to perform work. This provision does not
restrict management's right to take whatever actions are necessary
to carry out the Agency mission during a bona fide emergency, with
said actions being taken in accordance with applicable laws.
2. If employees are restricted to an incident base or any
other camp during off shift periods, including during an
emergency, this constitutes a substantial limitation on the
employees' activities, placing them in a state of readiness, and
serves to place the affected employees in stand-by (sic) status,
except during bona fide sleep time.
The Line Officer or Incident Commander must assure that
employees' rights to the following are preserved while off shift:
a. The right to freely exercise their religion.
b. The right to vote.
c. The right to attend political gatherings.
The Line Officer or Incident Commander shall clearly
communicate a decision to close a camp to all employees, and shall
document each decision and the rationale for it.
3. Time spent restricted to fire camp, mobilization centers
and rest and recuperation facilities is compensable.
Ordered Standby --
12.3 -- Ordered Standby. For all regular Government employees,
hours of ordered standby (on-shift time) are compensable. Ordered
standby demands careful attention to insure that compensation is
paid where warranted and not paid when inappropriate. Adhere to
the following guidelines:
1. Compensable standby shall be limited to those times when an
employee is held, by direction or orders, in a specific location.
. . . .
3. Time spent in a staging area, mobilization or
demobilization center, or other general areas where employees can
rest, eat, pursue activities of a general nature and are free to
leave the area is not compensable as ordered standby. Such time
is compensable only to the extent needed to complete the
guaranteed base hours.
(Only the underlined portions are in dispute.)
A. Agency
The Agency contends that employees restricted to a closed fire camp
are not entitled to standby pay unless they are in a state of readiness
to perform work. According to the Agency, although employees are
required to remain in a closed fire camp, they are free to use their
off-duty time "effectively for their own purposes." Statement of
Position at 7. In this regard, the Agency notes that it encourages
employees to use their off-shift time for rest and recuperation "to
facilitate their ability to fight fires when their on-shift begins." Id.
The Agency argues that, to the extent the proposal authorizes standby
pay based solely on the time spent at the fire camp, and without regard
to whether employees are in a state of readiness to perform work, the
proposal is inconsistent with 5 U.S.C. Section 5542( a), Federal
Personnel Manual Supplement 990-2, Book 610, 51-3d, and 5 C.F.R. Section
551-431(a). In support of its position, the Agency cites various
decisions of the Authority and the Comptroller General for the
proposition that entitlement to standby pay requires that employees hold
themselves in a stat of readiness to perform work, that standby duty
must be officially ordered or approved, and that standby status does not
result solely from geographic restrictions or geographic isolation.
More specifically as to sections 12.5-2, 12.5-3, and 12.3-1 of the
proposal, the Agency argues that "(s)tandby pay status does not result
from geographic isolation(,)" and that "the Union is attempting to
define entitlement to standby pay through geographic isolation rather
than the status of their readiness to perform work and whether or not
the employee has been ordered to be ready to perform work." Statement of
Position at 9, 10. The Agency also argues that Section 12.3-3, by using
the phrase "and are free to leave the area . . . again attempts to tie
the definition of standby pay status to geographic location." Id. at 10.
The Agency further contends that the proposal does not constitute a
negotiable appropriate arrangement under section 7106(b)(3) of the
Statute. The Agency admits that providing standby pay to all employees
assigned to a closed fire camp would be an arrangement. However, the
Agency asserts that the proposal is not appropriate because the sections
of the proposal "constitute a clear violation of the laws, regulations,
and decisions of the Comptroller General regarding compensable time."
Id. at 13. The Agency also argues that the proposal would excessively
interfere with management's right under section 7106 of the Statute "to
take whatever actions may be necessary to carry out the Agency mission
during emergencies." Id. In support of this latter contention, the
Agency argues that various factors determine whether the Incident
Commander orders off-shift employees to be in a state of readiness, such
as the size and complexity of a fire, weather conditions, and terrain,
and that the determination is not based solely on whether the fire camp
has been declared closed.
In its supplemental brief, the Agency responds to a constitutional
claim raised by the Union. The Agency asserts that whether the
restriction of employees to a closed fire camp violates their liberty
interests under the Fifth and Fourteenth Amendments to the U.S.
Constitution is not pertinent to the disposition of this case. However,
with regard to the merits of the Union's claim, the Agency asserts that
it has taken actions to ensure that closed fire camps do not infringe on
employees' constitutional rights. Specifically, the Agency notes that
section 12.5-2 of the proposal contains assurances of employees' rights
during off-shift time to freely exercise their religion, to vote, and to
attend political gatherings. The Agency maintains that "(t)here are no
restrictions upon employees' right to exercise these freedoms. They may
do so without notice to any official at the closed fire camp." Agency's
supplemental Brief at 7.
B. Union
The Union argues that the Agency incorrectly interprets 5 C.F.R.
Section 551.431(a) as mandating that all of the requirements set forth
therein be satisfied in order for employees to be entitled to standby
pay. /2/ The Union states that there are two separate sections
contained in that regulation and that 5 C.F.R. Section 551.431(a)(1) is
applicable "when employees are restricted to the close confines of a
closed fire camp." Response at 3. The Union further states that "(i)t
cannot be argued that employees restricted to a closed fire camp are
free to use his/her time effectively for his or her own purposes." Id.
The Union acknowledges that employees are free to use their off-shift
time, but argues that employees have nothing to do during such time "due
to the restrictions of a closed fire camp and little or no recreational
opportunity(.)" Id. at 2.
The Union disputes the Agency's contention that employees must hold
themselves in a state of readiness in order to receive standby pay. The
Union acknowledges "that employees are not required to hold themselves
in a 'state of readiness' during their off-shift time at a closed fire
camp." Id. However, the Union states that the "mere fact that an
employee is restricted to a fire camp puts that employee in the position
of 'holding himself in readiness to perform actual work'". Id. at 3.
In addition, the Union notes that "(a)ll employees at fire camps are
ready to perform work and when the need arises or when called, (are)
'fully outfitted' in less than 10 minutes." Id. Finally, the Union
asserts that the Agency's arguments pertaining to geographic isolation
have no bearing on the proposal because employees are not required to
remain in an area due to its isolation. The Union states that the
Agency closes a fire camp only when it is near a community, not when it
is in an isolated location.
The Union also argues that the proposal constitutes an appropriate
arrangement. The Union notes that, absent compensation for bargaining
unit employees, the employees would be treated differently from other
personnel, such as those employed by a state forestry agency who are
paid on a 24-hour basis. The Union also argues that the proposal does
not excessively interfere with the Agency's right to take whatever
action is necessary for the Agency to carry out its mission during
emergencies. The Union asserts that the proposal does not prevent the
Agency from closing fire camps but only requires that employees be
compensated when they are restricted to the fire camps.
Finally, the Union contends that closing fire camps without
compensating employees violates the employees' constitutional rights
under the Fifth and Fourteenth Amendments. The Union argues that the
Agency has failed to show a compelling state interest that would justify
an infringement of employees' liberty interests in being able to move
from one place to another. The Union maintains that while the Agency
retains the right to close fire camps, the resulting restriction on
employees' mobility requires that the Agency compensate employees.
For the following reasons, we find that the disputed sections of the
proposal are nonnegotiable because they are inconsistent with 5 C.F.R.
Section 551.431(a)(2).
The Union claims that this case is governed by the provisions of
Section 551.431(a)(1) and that bargaining unit employees who are
restricted to the fire camps and cannot use their time effectively for
their own purposes are entitled to standby pay. We disagree. The
section of the regulation on which the Union relies addresses situations
where employees are restricted to an agency's premises or so close
thereto that employees cannot use the time effectively for their own
purposes. The regulation does not define what is meant by the term
"agency's premises." The Union cites no support for its view that a
closed fire camp constitutes the Agency's premises within the meaning of
the regulation. In fact, the Union notes that the proposal would apply
to a variety of locations, including "Bear Creek, Alaska or Hyde Park,
New York(.)" Response at 3.
In our view, it is more appropriate to address the availability of
standby pay under the requirements of 5 C.F.R. Section 551.431(a)(2).
That section applies when employees are not restricted to an agency's
premises but, as relevant here, are restricted to a designated post of
duty. Recently, in National Federation of Federal Employees, Local 466
and U.S. Department of Agriculture, Forest Service Regional Office,
Atlanta, Georgia, 45 FLRA No. 108, slip op. at 8 (1992), we noted that
fire camps are established "away from employees' normal work
locations(.)" Indeed, the record here demonstrates that fire camps are
established at a variety of locations and do not all involve Federal
lands. The Agency states, in this regard, that it cooperates with other
Federal agencies and state and local governments to fight fires in
national forests and grasslands as well as lands managed by states and
other Federal agencies. Under these circumstances, we find that closed
fire camps, which may be established in varying geographic locations,
including lands that clearly could not be considered the Agency's
premises, constitute designated posts of duty, and not the Agency's
premises.
Having reached this conclusion, we note that certain requirements set
forth in Section 551.431(a)(2) must be satisfied in order to entitle
employees to standby pay. Among them is the requirement that employees
remain in a state of readiness to perform work. /3/ The Agency argues
that employees assigned to a closed fire camp are not required to remain
in a state of readiness and, instead, are encouraged to use their
off-shift time for rest and recuperation. The Union concedes that
"employees are not required to hold themselves in a 'state of readiness'
during their off-shift time at a closed fire camp." Response at 2.
Despite this concession, however, the Union argues that the restriction
to the closed fire camp itself is sufficient to place employees in a
state of readiness. The Union's argument is not persuasive.
If the restriction to an employee's post of duty were the sole
determinant of entitlement to standby pay, the additional requirements
of 5 C.F.R. Section 551.431(a)(2), that employees remain in a state of
readiness to perform work and that their activities be substantially
limited, would be rendered meaningless. There is no basis on which to
disregard these additional regulatory requirements and we decline to do
so. Thus, in light of the Agency's contention that employees are not
required to remain in a state of readiness to perform work and the
Union's concession to that effect, we conclude that the disputed
sections of the proposal are inconsistent with 5 C.F.R. Section
551.431(a)(2). We further conclude that that regulation is a
Government-wide regulation within the meaning of section 7117(a)(1) of
the Statute. See American Federation of Government Employees, Council
of Marine Corps Locals (C-240) and U.S. Department of the Navy, United
States Marine Corps, Washington, D.C., 39 FLRA 773, 777-79 (1991),
enforced, 962 F.2d 1066 (1992) (for employees covered by the Fair Labor
Standards Act, 5 C.F.R. Section 551.431 establishes criteria for
determining when time spent in standby status is considered compensable
hours of work). Consequently, we conclude that the disputed sections of
the proposal are nonnegotiable.
Having concluded that the disputed sections are inconsistent with the
above-cited regulation, it is unnecessary to address whether the
sections constitute an appropriate arrangement under section 7106(b)(3)
of the Statute. Section 7106(b)(3) of the Statute applies only when an
agency exercises the management rights set out in section 7106, and does
not apply when a proposed matter is inconsistent with a Government-wide
regulation. See section 7117(a)(1) of the Statute; see also National
Federation of Federal Employees, Local 2015 and U.S. Department of the
Interior, National Park Service, 41 FLRA 1158, 1183 (1991).
Additionally, in light of our conclusions, it is unnecessary to address
the Agency's additional contentions that the disputed sections are
nonnegotiable.
Finally, we find that the Union's claim of a constitutional violation
is not properly before us in this proceeding. In resolving
negotiability issues under section 7117 of the Statute, we examine
whether proposals are inconsistent with laws, rules, or regulations.
There is no contention here that a proposed matter is inconsistent with
the Constitution. Rather, the thrust of the Union's argument is that
the Agency's refusal to compensate employees at closed fire camps is a
violation of their constitutionally protected liberty interests. Such a
claim is not appropriately adjudicated in a negotiability proceeding.
See generally, Social Security Administration, 45 FLRA 303, 322 (1992),
petition for review filed sub nom. National Treasury Employees Union v.
FLRA, No. 92-1383 (D.C. Cir. Aug. 21, 1992).
The petition for review is dismissed.
(1) The Agency filed a supplemental brief in order to respond to a
constitutional issue raised by the Union in its reply brief. The Union
did not object to the filing of the supplemental brief and we will
consider it. Further, in its supplemental brief, the Agency withdrew
its allegation of nonnegotiability as to Section 12.3-2 of the proposal.
Accordingly, that section is not before us and will not be considered
further.
(2) 5 C.F.R. Section 551.431(a) provides:
(a) An employee will be considered on duty and time spent on
standby duty shall be considered hours of work if:
(1) The employee is restricted to an agency's premises, or so
close thereto that the employee cannot use the time effectively
for his or her own purposes; or
(2) The employee, although not restricted to the agency's
premises:
(i) Is restricted to his or her living quarters or designated
post of duty;
(ii) Has his or her activities substantially limited; and
(iii) Is required to remain in a state of readiness to perform
work.
(3) The other requirement that must be satisfied is that employees'
activities are substantially limited.
45 FLRA 1199
45 FLRA No. 119
NFFE, Local 1482 and U.S. Dept. of Defense, Defense Mapping Agency,
Hydrographic/Topographic Production Center, Louisville, Kentucky, Case
No. 0-NG-1898 (Decided September 14, 1992)
5 C.F.R. Section 2424.1
7103(a)(14)(B)
NEGOTIABILITY DETERMINATION
CONDITIONS GOVERNING REVIEW
CONDITIONS OF EMPLOYMENT
This case concerned the negotiability of a proposal that would, among
other things, prevent the Agency from reclassifying positions unless the
employees incumbent in those positions consented. The Authority found
that the proposal was nonnegotiable. The Authority dismissed the
Union's petition for review as it pertained to Section 3 of the proposal
because the conditions governing review of negotiability issues had not
been met.
The Authority found that the proposal was nonnegotiable because it
did not concern employees' conditions of employment. The Authority
noted that section 7103(a)(14)(B) of the Statute excludes from the
definition of conditions of employment matters relating to the
classification of any position. The Authority found that based on the
plain wording of the proposal and the Union's statement, the proposal in
this case related to the classification of a position within the meaning
of section 7103(a)(14)(B) of the Statute and, therefore, concluded that
it did not concern a condition of employment.
Case No. 0-NG-1898
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1482
(Union)
U.S. DEPARTMENT OF DEFENSE, DEFENSE MAPPING AGENCY, HYDROGRAPHIC/
TOPOGRAPHIC PRODUCTION CENTER, LOUISVILLE, KENTUCKY
(Agency)
September 14, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on a negotiability appeal filed
under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute), and concerns the negotiability of a
proposal that would, among other things, prevent the Agency from
reclassifying positions unless the employees incumbent in those
positions consented. The Union did not file a response to the Agency's
statement of position. For the following reasons, we find that the
proposal is nonnegotiable.
On October 25, 1990, the Union filed an unfair labor practice charge
alleging that the Agency had violated section 7116(a)(1), (5), and (8)
of the Statute by reclassifying certain bargaining unit positions
without bargaining with the Union. Also on October 25, 1990, the Union
submitted to the Agency a proposal consisting of the first two sections
of the proposal that is at issue in this case. The Agency alleged that
the proposal was nonnegotiable and the Union filed the instant petition
for review of the Agency's allegation of nonnegotiability. In
accordance with section 2424.5 of the Authority's Rules and Regulations,
the Union elected to proceed under the unfair labor practice procedures.
By letter dated January 31, 1991, the Regional Director declined to
issue a complaint based on the Union's charge. The Union appealed the
Regional Director's decision not to issue a complaint and, by letter
dated May 21, 1991, the Office of the General Counsel denied the Union's
appeal.
By letter to the Authority dated June 3, 1991, the Union stated that
on February 28, 1991, while the appeal of the Regional Director's
decision was pending before the Office of the General Counsel, the Union
had resubmitted its proposal to the Agency. The proposal, as
resubmitted, contained the same two sections as the original proposal
and added a section (Section 3) that was not a part of the original
proposal. There is no evidence in the record that the Union requested
an allegation of nonnegotiability as to Section 3 or that the Agency has
alleged that Section 3 is nonnegotiable. Rather, the record shows that
in response to the Union's proposal as resubmitted, the Agency requested
to meet with the Union to discuss the proposal.
Under section 2424.1 of our Rules and Regulations, we will consider a
petition for review of a negotiability issue only where the parties are
in dispute as to whether a proposal is inconsistent with law, rule, or
regulation. See, for example, National Federation of Federal Employees,
Forest Service Council and U.S. Department of Agriculture, Forest
Service, Region 6, Portland, Oregon, 45 FLRA 242, 246 (1992). The
Agency has asserted that the first two sections of the proposal are
inconsistent with law. Accordingly, the conditions governing review of
negotiability issues have been met as to those sections. However, the
Agency has not asserted that Section 3 is nonnegotiable. Because the
Agency does not assert that Section 3 of the Union's proposal is
nonnegotiable, the conditions governing review of negotiability issues
have not been met as to Section 3.
Consequently, we will dismiss the Union's petition for review as it
pertains to Section 3 of the proposal without prejudice to the Union's
right to file a negotiability appeal if the conditions governing review
of negotiability issues are satisfied and the Union elects to file such
an appeal.
The following procedure will be used in reclassification of
positions in the terrain analysis division to cartographer:
1. If the employee affected agrees in writing to the proposed
change it can be accomplished.
2. If the employee affected does not agree in writing to the
proposed change then the employee(')s classification will not be
changed. The employee(s), at their discretion, may have the
classification changed to cartographer at any time in the future
by giving their branch chief a written statement indicating the
requested change. The change will be done in a timely manner.
The employee(s) who elect to keep their current title, position
description, and standards will retain all previous benefits of
the said position.
The said written agreement of the employee will be maintained
by the employer for a period of one (1) year. The Union will have
access to review the material at any time.
3. Because of the severe adverse affect on the loss of pay of
the civil engineers they will retroactively from 02 Dec 1990
receive the following (if the employee elects to use this service)
service paid entirely by the employer:
A. Free parking from the lot of the employee(')s choice.
B. Free health club membership from the club of their choice.
C. Free child care from the provider of their choice.
D. A yearly cash award in the following amount for their
performance appraisal (if monies are not available for all cash
awards for all employees then the engineers will receive priority
consideration for the awards).
1. Fully Successful -- 5% of their annual salary.
2. Highly Successful -- 7.5% of their annual salary.
3. Outstanding -- 10% of their annual salary.
These items will help compensate the engineers for the loss of
pay by the employer removing them from special rate of pay, which
may be barred from negotiations by law. (The preceding sentence
was added to the original proposal as part of Section 3 of the
resubmitted proposal.)
A. The Agency
The Agency contends that the proposal is nonnegotiable because it
concerns matters related to the classification of positions which are
excluded from the definition of conditions of employment under section
7103(a)(14)(B) of the Statute. The Agency also contends that the
proposal does not constitute either a procedure under section 7106(b)(
2) of the Statute or an appropriate arrangement under section 7106(b)(
3) of the Statute because the "proposal was intended to be a complete
abrogation of the Agency's authority to reclassify positions." Statement
of Position at 6. The Agency also argues that employees were not
adversely affected as a result of the reclassification action.
Further, the Agency contends that the proposal is nonnegotiable
because it is "analogous to proposals . . . which condition the exercise
of management's section 7106 rights on employees' consent." Id. at 7.
The Agency argues that, because the proposal prevents reclassification
of positions without employee consent, the proposal "also should be
considered to directly interfere with, or directly relate to, the
Agency's authority to classify positions without bargaining." Id.
B. The Union
The Union explains that the intent of its proposal is to permit those
employees affected by the Agency's reclassification of a position to
"control the reclassification action." Petition for Review at 2. In this
regard, the Union states that "(i)f (the employees) agree with it(,) it
can be done. If they object, it will not be done." Id.
Section 7103(a)(14)(B) of the Statute excludes from the definition of
conditions of employment matters "relating to the classification of any
position(.)" See National Association of Government Employees, Local
R12-23 and U.S. Department of the Navy, Naval Air Warfare Center,
Weapons Division, Point Mugu, California, 45 FLRA 802 (1992). By its
terms, the proposal in this case would prevent the Agency from
reclassifying positions unless employees affected by the
reclassification action agree to the reclassification. In its petition,
the Union states that the proposal is intended to prevent the Agency
from reclassifying an employee's position unless the employee agrees.
Therefore, based on the plain wording of the proposal and the Union's
statement, it is clear that the proposal relates to the classification
of a position within the meaning of section 7103(a)(14)( B) of the
Statute and, therefore, does not concern a condition of employment.
Accordingly, without addressing the Agency's other arguments, we find
that the proposal is nonnegotiable because it does not concern
employees' conditions of employment. See id.
The Union's petition for review is dismissed.
45 FLRA 1185
45 FLRA No. 118
Overseas Education Association and U.S. Dept. of Defense Office of
Dependents Schools, Case No. 0-NG-2015 (Decided September 11, 1992)
7105(a)(2)(E)
7106(b)(1)
NEGOTIABILITY DETERMINATION
TIMELINESS
SERVICE BY FAX
CONDITIONS OF EMPLOYMENT
MATTERS PROVIDED FOR BY FEDERAL LAW
MGT'S RIGHT TO DETERMINE THE NUMBERS, TYPES, GRADES OF EMPLOYEES
This case concerned the negotiability of seven proposals. Proposals
1, 2, 3, 4, and 5 concerned matters pertaining to the fixing of basic
compensation of unit employees. Proposals 6 and 7 concerned retroactive
appointment to permanent positions for employees holding temporary
appointments who met the conditions described in the proposals. The
Authority found the proposals to be nonnegotiable.
Preliminarily, the Agency argued that the Union's petition was
"improperly submitted" and, therefore, should have been dismissed. The
Agency argued that it received by facsimile transmission (FAX), a copy
of the Union's petition. The Agency contends that such service did not
constitute service in accordance with section 2429.27(b) of the
Authority's Rules and Regulations. The Authority noted that under its
Rules and Regulations, service by FAX is not proper service. However,
the Authority found that because the petition was timely served by mail
also, it was properly before the Authority.
The Authority found that Proposals 1, 2, 3, 4, and 5 concerned
matters pertaining to employees' basic compensation that are
specifically provided for by law and that, therefore, the proposals did
not concern negotiable conditions of employment within the meaning of
section 7103(a)(14)(C) of the Statute.
The Authority concluded that Proposals 6 and 7 were nonnegotiable.
The Authority found that these proposals interfered with management's
right to determine the numbers, types, and grades of employees or
positions assigned to any organizational subdivision, work project, or
tour of duty under section 7106(b)(1) of the Statute.
Case No. 0-NG-2015
OVERSEAS EDUCATION ASSOCIATION
(Union)
U.S. DEPARTMENT OF DEFENSE, OFFICE OF DEPENDENTS SCHOOLS
(Agency)
September 11, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on a negotiability appeal filed
under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute) and concerns the negotiability of seven
proposals.
Proposals 1, 2, 3, 4, and 5 concern matters pertaining to the fixing
of basic compensation of unit employees. Proposals 6 and 7 concern
retroactive appointment to permanent positions for employees holding
temporary appointments who meet the conditions described in the
proposals. For the reasons that follow, we find that the proposals are
nonnegotiable. Accordingly, we will dismiss the petition for review.
The Agency contends that the Union's petition was "improperly
submitted" and, therefore, "must be dismissed." Statement of Position
(Statement) at 1. The Agency asserts that on January 8, 1992, it
received, by facsimile transmission (FAX), a copy of the Union's
petition. Citing American Federation of Government Employees, Local
2776 and U.S. Department of Defense, Armed Forces Radio and Television
Service, Broadcast Center, Sun Valley, California, 41 FLRA 1292 (1991)
(Broadcast Center), the Agency contends that such service does not
constitute service in accordance with section 2429.27(b) of the
Authority's Rules and Regulations.
The Union asserts that it served a copy of the petition to the Agency
by mail on January 3, 1992, and that the certificate of service attached
to the petition filed with the Authority "attest(s) to this fact."
Response at 1. The Union contends that the Agency also received notice
of the filing of the petition from the Authority when the case number
was assigned. Noting that the Agency received the petition and filed a
timely statement, the Union asserts that the Agency "was not harmed by
the manner of service" of the petition and that, consistent with
Authority precedent, the Authority should not dismiss the petition for
review. Id. at 2.
We note the Agency's reliance on Broadcast Center to support its
contention that service by FAX does not constitute proper service under
section 2429.27(b). Under our Rules and Regulations, service by FAX is
not proper service. However, based on the reasons set forth below, we
find that the petition in this case was served by mail and is properly
before us.
The record shows that the Union included with its timely filed
petition a signed and dated statement of service indicating that the
Union had served its petition, by regular mail, on the Agency. The
Agency does not claim that it did not receive a copy of the petition by
regular mail. The copy of the petition sent to the Agency by FAX would
appear, therefore, to be an additional copy of the petition that was
sent to the Agency. The Agency, thereafter, filed a timely statement of
position. Thus, the record shows that the Agency received a copy of the
Union's petition in a timely manner so as to permit it to timely file
its statement with the Authority. Moreover, the Agency does not claim,
and there is no basis on which to conclude, that the Agency was harmed
by the Union's service of the petition by regular mail instead of by
certified mail. Because the record shows that the Agency received the
petition and filed a timely statement, and because the Agency has not
shown that it was prejudiced by the manner in which the Union's petition
was served, we find that dismissal of the petition is not warranted.
See, for example, U.S. Department of Defense, Defense Contract Audit
Agency, Central Region and American Federation of Government Employees,
Local 3529, 35 FLRA 316, 320 (1990).
Proposal 1
5.A. Unit employees shall be paid on a daily rate of pay equal
to the average rate of daily pay for school systems in the United
States with 100,000 plus population. Any portion of a half-day (3
hours) shall be equal to one-half day for pay purposes.
Proposal 2
5.B. Unit employees shall receive credit, for DODDS salary
advancement, for each day or portion of a day (portion of a
half-day equal to one-half) of employment with the federal
government. In addition, credit (up to 10 years) shall be granted
for each year of service with another system (public or private).
Ninety-five (95) days or 190 half-days of service in one school
year shall constitute one school year for salary purposes. One
hundred-fifty (150) days of accumulated service shall constitute
one school year for pay purposes. Employment as a substitute
shall count toward salary advancement.
Proposal 3
5.C. Beginning with SY 1990-91 the salary schedule for unit
employees shall incorporate new pay lanes for BA + 45, BA + 60, MA
+ 45, MA + 60.
Proposal 4
5.D. Beginning with SY 1990-91 the salary schedule for unit
employees shall incorporate three long(evity) steps for pay
purposes.
Proposal 5
5.E. All graduate credits earned working toward a degree shall
count toward salary advancement.
A. Positions of the Parties
1. Agency
The Agency asserts that Proposals 1, 2, 3, 4, and 5, "all deal with
fixing basic compensation for unit employees(,)" who are overseas
teachers. Statement at 4. The Agency contends, generally, that the pay
and personnel practices for these employees are established in
accordance with 20 U.S.C. Sections 902(a)(2) and 903(c). /*/ The Agency
asserts that these provisions require "that the basic compensation for
(the affected employees) reflect the current practice for similar
positions in certain U.S. jurisdictions." Id. at 3. Citing March v.
U.S., 506 F.2d 1306 (D.C. Cir. 1974) (March), order on remand, Civil
Action No. 3437-70 (D.D.C. June 27, 1975), the Agency asserts that the
"pay fixing procedure in (20 U.S.C. Sections 902(a)(2) and 903(c)) is
not a matter left to the agency head's discretion, but rather is a
statistical and mathematical process provided for by law." Id. at 5.
The Agency contends, therefore, that the pay procedures involved in
Proposals 1, 2, 3, 4, and 5 are not negotiable conditions of employment
under section 7103(a)(14)(C) of the Statute.
The Agency also states that this case is distinguishable from Fort
Stewart Schools v. FLRA, 495 U.S. 641 (1990) because the statute
involved in that case "allows management discretion to set pay so long
as the overall comparability standard is met(,)" while in this case the
Agency "does not have residual discretion concerning basic
compensation." Id. at 5 and 6.
As to Proposal 1, the Agency contends that 20 U.S.C. Section 902
requires the Secretary of Defense "to prescribe and issue regulations
which govern various aspects of employment" of the teachers involved in
this case. Id. at 6. The Agency asserts that in compliance with this
law, the Secretary of Defense issued Department of Defense Directive
(DODD) Number 1400.13. The Agency states that this regulation
establishes the method for calculating the daily rate of pay for an
educator and states that "'the daily rate of compensation for an
educator will be the appropriate school year salary divided by 190.'"
Id. at 6-7. The Agency asserts that, because Proposal 1 "attempts to
dictate (the method for calculating) an employee's rate of basic
compensation," which the Agency has established pursuant to law, the
proposal is nonnegotiable. Id. at 7. In support of its assertion, the
Agency cites March and Overseas Education Association, Inc. and
Department of Defense Dependents Schools, 29 FLRA 734, 835 (1987)
(Department of Defense Dependents Schools) (Chairman Calhoun concurring
in relevant part), enf'd as to other matters by, 911 F.2d 743 (D.C.
Cir. 1990) (en banc order).
The Agency contends that Proposal 2 requires that unit employees be
given "salary credit" based on previous teaching or Federal work
experience. Id. at 10. Citing March and Department of Defense
Dependents Schools, the Agency contends that because credit for teaching
or work experience is a matter concerning basic compensation, the
proposal is inconsistent with 20 U.S.C. Sections 901 and 902(a). The
Agency contends, therefore, that Proposal 2 is nonnegotiable.
The Agency asserts that Proposal 3 provides for "specific pay lanes
within the teacher's salary schedule." Statement at 10. According to
the Agency, "(a)ll elements of basic compensation for teachers" are
governed by 20 U.S.C. Sections 902(a)(2). Id. The Agency contends that
in March, the court concluded that "salary grade (and) number of steps
within a particular salary grade are elements of basic compensation."
Id. The Agency asserts that because Proposal 3 "requir( es) the
establishment of 4 additional pay lanes (BA+45, BA+60, MA+45, and
MA+60)(,)" the proposal is nonnegotiable under March and the Authority's
decision in Department of Defense Dependents Schools, 29 FLRA at 835-36.
Id.
The Agency states that Proposal 4 provides for one longevity step to
be added to the two provided in the current salary schedule. The Agency
asserts that the requirement that an additional longevity step be
"arbitrarily added to the salary schedule without regard to the current
practices conflicts with the 'equal to()' requirement" of 20 U. S.C.
Section 901 et seq. Id. at 11. Therefore, the Agency contends that the
proposal is nonnegotiable.
The Agency asserts that Proposal 5 requires that credit for salary
advancement be given based on the "'equivalency'" of an employee's
education rather than on the actual earned degree, which is the Agency's
current practice. Id. at 13. The Agency contends, for the reasons
stated with respect to Proposal 2, that the practice provided by
Proposal 5 "would be contrary to the pay practices" set forth in 20
U.S.C. Section 901, et seq., and, therefore, that Proposal 5 is
nonnegotiable. Id.
2. Union
The Union contends that Proposal 1 would establish a process for
paying teachers in compliance with 20 U.S.C. Section 902 and "pertains
to a matter within the Agency's discretion." Response at 3. The Union
further contends that the Agency misinterprets the court's decision in
March. The Union asserts that March does not stand for the proposition
that all procedures enacted by the Agency to arrive at the statutory
mandate of equal pay under 20 U.S.C. Section 902 are nonnegotiable.
The Union asserts that in Department of Defense Dependents Schools,
29 FLRA at 833, the Authority also misinterpreted the court's decision
in March. The Union contends that the Authority misread the court's
statement that Congress intended 20 U.S.C. Section 901 et seq. to leave
"'no room for the substitution of independent views or judgments by any
Federal civilian or military official'" to mean that the "'pay fixing
procedure was a statistical and mathematical process provided by law.'"
Id. at 3 (quoting 506 F.2d at 1317), 4 (quoting Department of Defense
Dependents Schools at 833). The Union contends that this interpretation
"ignores the reality that there are . . . variables in the mathematical
equation." Id. at 4. According to the Union, the Agency has discretion
over such variables and those areas of discretion are addressed by
Proposals 1-5. Citing the decision of the Federal Labor Relations
Council (FLRC) under Executive Order No. 11491 in Overseas Education
Association, Inc. and Department of Defense, Office of Dependents
Schools, 6 FLRC 231 (1978) (Department of Defense, Office of Dependents
Schools), the Union contends that Proposal 1 is a "procedure for
determining the daily rate of pay that is in compliance with the
statutory requirement of equal pay." Id. at 5. The Union asserts that
"(p)roposals that seek to require the Agency to follow the law are
negotiable." Id.
As to Proposals 2, 3, 4, and 5, the Union incorporates the arguments
made with respect to Proposal 1. The Union further explains that
Proposal 2 "would establish a process for determining the amount of
credit to be given for previous experience as a teacher for step
placement in compliance with the statutory requirement." Id. at 6. The
Union contends that Proposal 3 "would establish (a) procedure for the
distribution of pay among the bargaining unit members with appropriate
credentials in compliance with the statutory requirement." Id. at 7.
The Union asserts that Proposal 4 "would (incorporate) the current
number of long steps into the pay schedule in compliance with 20 U.S.C.
(Section) 902." Id. In support of this assertion, the Union cites an
arbitrator's award holding that, based on survey data, the Agency was
required, under 20 U.S.C. Section 902, to adopt a third longevity pay
step. With respect to Proposal 5, the Union contends that this proposal
"would establish the process for determining the amount of credit given
for placement on the appropriate pay lanes for unit members in
compliance with the statutory requirement." Id. at 8.
B. Analysis and Conclusions
We find, for the reasons discussed below, that Proposals 1, 2, 3, 4,
and 5 concern matters pertaining to employees' basic compensation that
are specifically provided for by law and, therefore, the proposals do
not concern negotiable conditions of employment within the meaning of
section 7103(a)(14)(C) of the Statute.
Matters pertaining to the wages of Federal employees covered by the
Statute are conditions of employment subject to the duty to bargain
under the Statute unless they are excluded from the definition of
conditions of employment because they are specifically provided for by
Federal statute, within the meaning of section 7103(a)(14)(C) of the
Statute. See Fort Stewart, 495 U.S. at 644-50. See also National
Association of Government Employees, Local R14-52 and U.S. Department of
the Army, Red River Army Depot, Texarkana, Texas, 41 FLRA 1057, 1062-63
(1991) (Red River Army Depot), petition for review filed sub nom. U.S.
Department of the Army, Red River Army Depot, Texarkana, Texas v. FLRA,
No. 91-1472 (D.C. Cir. Sept. 26, 1991).
Where a Federal statute provides discretion to an agency with respect
to the determination of matters pertaining to Federal employee wages,
the wages of those employees are not a matter specifically provided for
by Federal statute within the meaning of section 7103(a)( 14)(C) of the
Statute. See Fort Stewart, 495 U.S. at 644-50; International
Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135
and U.S. Department of the Treasury, Bureau of Engraving and Printing,
43 FLRA 1202, 1213-17 (1992), request for stay denied, 44 FLRA 761
(1992), petition for review filed, No. 92-1125 (D.C. Cir. Mar. 26,
1992).
Turning to the instant case, we note that the Department of Defense
Overseas Teachers Pay and Personnel Practices Act (the Teachers Pay
Act), 20 U.S.C. Section 901 et seq., governs, among other things, the
compensation of teachers. This Act requires that basic compensation be
fixed at rates equal to the average of the range of rates of basic
compensation for similar positions in urban school jurisdictions in the
United States of 100,000 or more population. 20 U.S.C. Section 903. It
also requires that the Secretary of Defense implement regulations
governing, among other things, the fixing of basic compensation of
teachers subject to the above-described provisions set forth in 20 U.S.
C. Section 903. 20 U.S.C. Section 902. The Authority previously
examined this Act in connection with proposals concerning the
compensation of overseas teachers and found that all elements of basic
compensation of teachers are matters that are specifically provided for
under 20 U.S.C. Sections 902 and 903 and, therefore, management has no
discretion over the basic compensation of such employees. Department of
Defense Dependents Schools, 29 FLRA at 834-36.
Specifically, in Department of Defense Dependents Schools, the
Authority examined the language of 20 U.S.C. Sections 902 and 903. The
Authority noted the court's decision in March, where the court in
interpreting 20 U.S.C. Sections 902 and 903 stated, among other things,
that "(a)ll elements of basic compensation (for teachers in the Agency's
overseas school system) are governed by the statutory equality mandate."
March, 506 F.2d at 1319. Thus, the court held that the basic
compensation of teachers covered by the Act must be equal to the
compensation for teachers in certain specified stateside school
districts. Noting the court's decision in March, the Authority stated
that "Congress intended the statutory scheme for determining (overseas)
teachers salaries to leave no room for the substitution of Federal
civilian or military officials' views in the process." Department of
Defense Dependents Schools, 29 FLRA at 835. The Authority found,
therefore, that the "pay fixing procedure in the Teachers Pay Act is
intentionally not a matter left to the Agency's discretion, but rather
is a statistical and mathematical process provided for by law." Id. at
833. Thus, noting Congress' intent with respect to 20 U.S.C. Sections
902 and 903 and the court's decision in March, the Authority found that
the proposals involved, Proposals 22-26, concerned matters over which
management has no discretion, but, rather are provided for by law.
More specifically, the Authority found that Proposals 22-26 addressed
either: (1) length and/or type of prior service to be used in
calculating pay levels; (2) the amount and type of education which
would move employees from one pay level to another; or (3) how pay
rates would be determined for employees working less than full time.
Relying on the court's decision in March, the Authority found that "(s)
alary grade, number of steps within a particular salary grade, and
credit for past teaching experience are elements of basic compensation
and, consequently, are within the scope of the 'equal to' requirement()"
of the Act. Department of Defense Dependents Schools, 29 FLRA at 835.
Thus, the Authority found that the proposals concerned elements of basic
compensation and, therefore, were nonnegotiable because basic
compensation is a matter that is specifically provided for by Federal
law.
The Union contends that the Authority misinterpreted the court's
decision in March. However, based on Fort Stewart and March and our
examination of Department of Defense Dependents Schools, we find that
the Union has not provided any reasons for us to conclude that the
Authority's decision in Department of Defense Dependents Schools is
incorrect. In March, the court held that all elements of basic
compensation for the Agency overseas teachers are governed by the
statutory equality mandate of 20 U.S.C. Section 901 et seq. The court
in particular found that "salary grade, steps and credit for past
teaching experience" are essential elements of basic compensation. 506
F.2d at 1317. The court also held that the "daily wage rate is an
integral part of 'basic compensation.'" Id. at 1319 (footnote omitted).
In Department of Defense Dependents Schools the Authority relied on
March and found that the elements described by the court were elements
of basic compensation subject to the "equal to" requirement of 20 U.S.
C. Sections 902 and 903. Because the proposals concerned basic
compensation which is specifically provided for under 20 U.S.C.
Sections 902 and 903, the Authority concluded that the proposals were
nonnegotiable. Based on Fort Stewart and March, we find nothing in the
Authority's decision in Department of Defense Dependents Schools that
would lead us to conclude that this decision should not be followed.
In this case: (1) Proposal 1 concerns how the daily rate of
compensation will be determined; (2) Proposals 2 and 5 concern credit
toward salary advancement for prior Government service and/or
educational experience; and (3) Proposals 3 and 4 concern pay lanes
and/or longevity steps. We find that these proposals all concern facets
of basic compensation, that is, daily rate of compensation, salary
grade, and steps and credit for past teaching experience. Because
Proposals 1, 2, 3, 4, and 5 concern elements of basic compensation for
unit employees under March, we find, consistent with Department of
Defense Dependents Schools, that the proposals concern matters over
which the Agency has no discretion because such matters are provided for
by Federal law. Moreover, we note that in Department of Defense
Dependents Schools, the Authority also found that because the proposals
fixed pay matters wholly apart from matters connected to the survey
itself, the proposals were inconsistent with 20 U.S.C. Sections 902 and
903. To the same extent, we find that Proposals 1 through 5 are
inconsistent with law.
In so finding, we also note the Union's reliance on Department of
Defense, Office of Dependents Schools, 6 FLRC 231, which concerned the
application by the FLRC of 20 U.S.C. Section 901 et seq. under Executive
Order No. 11491. To the extent that the decision in Department of
Defense, Office of Dependents Schools, 6 FLRC 231, is inconsistent with
the Authority's decision in Department of Defense Dependents Schools, it
is no longer in "full force and effect." 5 U.S. C. Section 7135(b).
Additionally, we find that the arbitrator's award cited by the Union is
not relevant to the disposition of this case. The arbitrator's award
did not concern whether the Agency was obligated to bargain over a
matter pertaining to its teachers' salary schedule under 20 U.S.C.
Section 901 et seq. Rather, the award addressed only whether the Agency
had complied with the mandate of 20 U.S.C. Section 901 et seq. in its
implementation of the salary schedule for the 1989-1990 school year.
Accordingly, consistent with Department of Defense Dependents
Schools, we find Proposals 1, 2, 3, 4, and 5 are nonnegotiable.
7.A. In the event a local hire employee meets the criteria of
1400.25m and the JTR Volume II (i.e., death, legal separation,
divorce, etc.) an excepted appointment with condition shall be
retroactively granted to the beginning of the school year.
Proposal 7
7.B. If a local hire employee is employed on or before
November 1 of each year, he/she shall be retroactively given an
excepted appointment with condition unless eligible for without
condition.
A. Positions of the Parties
1. Agency
The Agency states that locally hired employees initially are hired on
a temporary basis. The Agency asserts that their "temporary
appointments have a 'not to exceed' date upon which the appointment
expires, normally at the end of the school year." Statement at 13. The
Agency further asserts that at the end of the temporary appointment, the
Agency may: (1) terminate the temporary appointment; (2) reappoint the
employee to another "temporary appointment not to exceed"; or (3)
convert the employee to an excepted (permanent) appointment with
condition providing that a continuing permanent position exists and the
employee's performance is satisfactory. Id. at 13-14.
The Agency contends that Proposal 6 would "require management to
convert (that is, appoint) locally hired temporary employees to
permanent positions, and to make these appointments retroactive to the
beginning (of) the school year." Id. at 14. The Agency asserts that the
proposal would "dictate to the (A)gency the type of positions and/ or
employees (temporary v. permanent) necessary to accomplish its mission."
Id. The Agency contends that proposals which concern the numbers, types
and grades of positions and/or employees assigned to an organization are
negotiable under section 7106(b)(1) of the Statute only at the election
of the Agency. The Agency asserts that it has elected not to negotiate
on Proposal 6 and, therefore, the proposal is nonnegotiable.
The Agency asserts that Proposal 7 is nonnegotiable for the same
reasons as Proposal 6. Additionally, the Agency contends that Proposal
7 is contrary to Federal Personnel Manual (FPM) chapter 296, subchapter
1, which provides "that no personnel action can be made effective prior
to the date on which the appointing officer approves the action." Id.
at 15. According to the Agency, FPM chapter 296, subchapter 2 outlines
the exceptions to this requirement. The Agency contends that because
Proposal 7 would require it to make "an appointment retroactive" absent
the exceptions identified in the FPM, the proposal is inconsistent with
the FPM chapter 296, subchapter 1, which is a Government-wide
regulation. Id.
2. Union
In its petition, the Union asserted that Proposals 6 and 7 "would
establish the process for determining when an appointment management has
decided to make would become effective." Petition at 3. Subsequently,
in its response, the Union explains that Proposals 6 and 7 "provide for
additional times when an appointment to a temporary position may be
converted to an Excepted Appointment-Conditional." Response at 8.
According to the Union, DODD Number 1400.13 "covers when a fully
qualified educator who has been appointed to a temporary position with
(the Agency) will be converted to an Excepted Appointment-Conditional."
Id. The Union states that "(c)onversion of fully qualified appointed
employees under these regulations occurs as a result of specific
triggering events and the passage of specified amounts of time." Id. at
8-9. The Union asserts that the proposals "provide for additional
triggering events and periods of time for when conversion of a temporary
appointment to an Excepted Appointment-Conditional would be permitted."
Id. at 9. The Union contends that the appointment procedures for
teachers are not "so specifically provided for" in 20 U.S.C. Section 902
as to be excluded from the definition of conditions of employment under
section 7103(a)( 14)(C) of the Statute. Id.
B. Analysis and Conclusions
We find that Proposals 6 and 7 are nonnegotiable.
We note that Proposal 6 refers to "the criteria of 1400.25m and the
JTR Volume II. . . ." However, the record does not contain a copy of
DODD Number 1400.25m or an appropriate reference to JTR Volume II. The
Union provided only a copy of DODD Number 1400.13. Noting that DODD
Number 1400.13 covers when a fully qualified educator who has been
appointed to a temporary position will be converted to a
permanent-conditional position, the Union explains that Proposals 6 and
7 provide for additional situations and time periods that would
"trigger()" the conversion of a temporary appointment to a
permanent-conditional appointment. Union's Response at 9. The Agency
asserts that the proposals require management to convert locally hired
temporary employees to permanent positions, and to make these
appointments retroactive to the beginning of the school year. Locally
hired employees are educators appointed in an overseas area. Based on
the parties' positions and the wording of Proposals 6 and 7, it is our
view that the proposals are intended to: (1) establish additional
criteria requiring the conversion of locally hired employees on
temporary appointments to permanent-conditional positions; and (2) make
such appointments retroactive to the beginning of the school year.
Under section 7106(b)(1) of the Statute, an agency has the right to
determine the numbers, types, and grades of employees or positions
assigned to any organizational subdivision, work project, or tour of
duty. In our view, determinations as to whether an employee holding a
temporary appointment should be converted to or granted a permanent
position in the Agency are matters directly related to the numbers,
types and grades of employees or positions assigned to its
organizational subdivisions, work projects, or tours of duty. See, for
example, National Treasury Employees Union and Department of Health and
Human Services, Region X, 25 FLRA 1041, 1051-52 (1987) (proposal
requiring an agency, in certain circumstances, to convert full-time
employees to part-time status found nonnegotiable because the
determination as to use of part-time employees to perform the work of
the agency is a matter directly related to the numbers, types, and
grades of employees or positions assigned to an agency's organizational
subdivisions, work projects, and tours of duty); National Federation of
Federal Employees, Local 1650 and U.S. Forest Service, Angeles National
Forest, 12 FLRA 611, 613 (1983) (proposal requiring an agency "to
attempt to work all WAE employees for as many of non-guaranteed pay
periods as available financing will allow" held nonnegotiable because it
concerned the agency's right under section 7106(b)(1) of the Statute to
determine the numbers, types, and grades of employees). See also
American Federation of Government Employees, Local 1923 and U.S.
Department of Health and Human Services, Health Care Financing
Administration, Baltimore, Maryland, 44 FLRA 1405, 1457-58 (1992),
petition for review filed, No. 92-1307 (D.C. Cir. July 24, 1992).
Under Proposals 6 and 7, if a temporary employee meets the specified
criteria, management would be obligated to convert the employee's status
from a temporary appointment to a permanent-conditional position, even
if management decided that to do so would make its staffing patterns
incompatible with its operational needs. The proposals would restrict
management's decision as to the mix of specific types of employees,
namely, temporary and permanent, that it will assign to various
organizational subdivisions, in this case, local schools. Accordingly,
we conclude that the proposals directly interfere with management's
right to determine the numbers, types, and grades of employees or
positions assigned to an organizational subdivision under section
7106(b)(1) of the Statute. In view of this determination, we need not
reach the Agency's contention that Proposal 7 conflicts with a
Government-wide regulation.
We further note that the Union has not asserted that Proposals 6 and
7 constitute appropriate arrangements under section 7106(b)(3) of the
Statute.
Accordingly, based on the above, we conclude that Proposals 6 and 7
are nonnegotiable.
The petition for review is dismissed.
(*) 20 U.S.C. Section 902(a)(2) provides that the Secretary of
Defense shall prescribe and issue regulations which shall govern:
the fixing of basic compensation for teachers and teaching
positions at rates equal to the average of the range of rates of
basic compensation for similar positions of a comparable level of
duties and responsibilities in urban school jurisdictions in the
United States of 100,000 or more population(.)
20 U.S.C. Section 903(c) provides that the Secretary of each military
department:
shall fix the basic compensation for teachers and teaching
positions in his military department at rates equal to the average
of the range of rates of basic compensation for similar positions
of a comparable level of duties and responsibilities in urban
school jurisdictions in the United States of 100,000 or more
population.
45 FLRA 1182
45 FLRA No. 117
AFGE, Local 2017 and U.S. Dept. of the Army, Army Signal Center and
Fort Gordon, Fort Gordon, Georgia, Case No. 0-AR-2232 (Decided September
11, 1992)
7122(a)
5 C.F.R. Section 2429.17
ARBITRATION EXCEPTION
RECONSIDERATION
EXTRAORDINARY CIRCUMSTANCES
This matter came before the Authority on a request for
reconsideration of 45 FLRA 817 (1992) filed by the Union under section
2429.17 of the Authority's Rules and Regulations.
The Authority concluded that the Union failed to establish that
extraordinary circumstances existed warranting reconsideration of its
decision in 45 FLRA 817. Accordingly, the Authority denied the Union's
request.
Case No. 0-AR-2232, (45 FLRA 817 (1992))
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2017
(Union)
U.S. DEPARTMENT OF THE ARMY, ARMY SIGNAL CENTER AND FORT GORDON, FORT
GORDON, GEORGIA
(Agency)
September 11, 1992
Before Chairman McKee and Member Talkin. /*/
This matter is before the Authority on a request for reconsideration
of 45 FLRA 817 (1992) filed by the Union under section 2429.17 of the
Authority's Rules and Regulations. The Agency filed an opposition to
the Union's request.
We conclude that the Union fails to establish that extraordinary
circumstances exist warranting reconsideration of our decision in 45
FLRA 817. Accordingly, we will deny the Union's request.
As set forth in more detail in 45 FLRA 817, the grievance alleged
that the Agency incorrectly evaluated the grievant's status in
determining his rights as a civilian employee when the Agency conducted
a reduction-in-force (RIF). The grievance alleged that the Agency
failed to give appropriate weight to the grievant's military service,
including his status as a disabled veteran. The Arbitrator denied the
Union's grievance.
In 45 FLRA 817, we denied the Union's exceptions. We concluded that
the Union's assertions that the Arbitrator was biased and that the award
was not based on law and regulation provided no basis for finding the
award deficient.
The Union requests that the Authority reconsider its decision
"because it is contrary to the stated laws, rules, and regulations
applicable to the decisions rendered on 0-AR-2232 and the Grievant's
'Disabled Veterans' 'Preference Eligible' status." Request for
Reconsideration at 1. In sum, the Union argues that the grievant is a
preference eligible disabled veteran for the purpose of title 5 of the
U.S. Code and that the Dual Compensation Act of 1964, 5 U.S.C. Sections
3501, 3502, which the Arbitrator relied on in his decision, "cannot be
used to restrict, alter, withhold, withdraw, or provide authority to RIF
a 'Preference Eligible' 'Disabled Veteran' as defined by 5 USC (Section)
2108 for use of title 5." Id.
The Agency contends that the Union has not provided any extraordinary
circumstances to warrant reconsideration of the Authority's decision
and, therefore, the Union's request should be denied.
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish the existence of "extraordinary circumstances"
to request reconsideration of an Authority decision. We conclude that
the Union has not established extraordinary circumstances within the
meaning of section 2429.17 to warrant reconsideration of our decision in
45 FLRA 817.
We reject the Union's argument that our decision is contrary to
applicable laws, rules, and regulations. We find that the Union's
request for reconsideration is merely an attempt to relitigate the
merits of our decision in 45 FLRA 817. As such, the motion does not
establish extraordinary circumstances warranting reconsideration of the
decision and we will deny the request. See, for example, U.S.
Department of the Interior, Bureau of Reclamation, Great Plains Region
and International Brotherhood of Electrical Workers, Local 1759, 43 FLRA
314, 317 (1991).
The Union's request for reconsideration is denied.
(*) Member Armendariz has recused himself from participation in the
resolution of this case because he is a life member of the Disabled
American Veterans.
45 FLRA 1164
45 FLRA No. 116
U.S. Dept. of Veterans Affairs, National Memorial Cemetery of the
Pacific and Int'l. Assoc. of Machinist and Aerospace Workers, Hawaii
Federal, Lodge 1998 (Bocken, Arbitrator), Case No. 0-AR-2214 (Decided
September 10, 1992)
7122(a)
5 C.F.R. Section 2429.5
7114(b)(4)
5 U.S.C. chapter 75, subchapter I
ARBITRATION EXCEPTIONS
AWARD CONTRARY TO LAW, RULE OR REGULATION
ISSUES NOT PRESENTED AT ARBITRATION
FAILURE TO PROVIDE INFORMATION
BURDEN OF PROOF
DUE PROCESS
The grievant filed a grievance over his suspension for 5 days for
opening a casket contrary to Agency rules. The Arbitrator denied the
grievance. The Authority concluded that the Union failed to establish
that the award was deficient, and denied the exceptions.
As to the first exception, the Authority concluded that the Union
failed to establish that the award was contrary to law. The Authority
found that the Union failed to demonstrate that the Agency's application
of M-40-2 to prohibit Agency employees from opening a casket during a
burial was unreasonable.
As to the second exception, the Authority concluded that the Union
failed to establish that the award was deficient. The Agency claimed
that the issue of whether the grievant was advised of his right to
remain silent as required by Article XX, Section 3 of the parties'
agreement was raised by the Union for the first time in its exceptions
to the award. The Authority concluded that the record supported the
Agency's claim. The Authority noted that under section 2429.5 of the
Authority's Rules and Regulations, arbitration awards are not subject to
review on the basis of any issue that could have been, but was not
presented to the arbitrator.
As for the third exception, the Union argued that the award was
deficient because the Union was entitled to be informed of the identity
of the informant under section 7114(b)(4) of the Statute, and the Agency
failed to provide the information. The Authority did not find the award
to be deficient on this basis. The Authority noted that there was no
indication that the Union argued to the Arbitrator that the failure to
provide the informant's identity violated section 7114( b)(4),
therefore, no basis was provided for finding that the award was contrary
to that section of the Statute.
As to the fourth exception, the Authority concluded that the Union
failed to demonstrate that law, governing regulation, or the collective
bargaining agreement specified that the Agency had the burden of proof
on the issue of the appropriateness of the penalty in a case of a
suspension of 14 days or less covered by 5 U.S.C. chapter 75, subchapter
I. The Authority noted that it has repeatedly held that unless a
specified standard of proof is required, arbitrators have the authority
to establish whatever standard they consider appropriate, and the
Authority will not find the award deficient on this basis.
As to the fifth exception, the Authority found that, in resolving the
Union's claim that the Agency denied the grievant the process that was
due him, the process provided to the grievant during the proceedings
before the Agency satisfied the requirements of Loudermill, 470 U.S. 532
and, consequently, was constitutionally sufficient.
Case No. 0-AR-2214
U.S. DEPARTMENT OF VETERANS AFFAIRS, NATIONAL MEMORIAL CEMETERY OF
THE PACIFIC
(Agency)
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, HAWAII
FEDERAL LODGE 1998
(Union)
September 10, 1992 Before Chairman McKee and Members Talkin and
Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator R. Charles Bocken filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Agency filed an
opposition to the Union's exceptions.
The grievant filed a grievance over his suspension for 5 days for
opening a casket contrary to Agency rules. The Arbitrator denied the
grievance.
We conclude that the Union fails to establish that the award is
deficient. Accordingly, we will deny the exceptions.
The grievant was suspended for 5 days for opening a casket during an
interment operation in violation of Agency rules. The grievant filed a
grievance over the suspension. The grievance was not resolved and was
submitted to arbitration on the issues of whether the Agency's failure
to disclose the identity of an informant in this case deprived the
grievant of due process and whether the suspension was for just cause
and the penalty was appropriate.
Before the Arbitrator, the Union argued that the grievance should be
sustained because the Agency had denied the grievant constitutional due
process by failing to reveal the name of the witness who informed the
Agency that the grievant had opened the casket prior to burial. The
Union also argued that the grievant did not have notice that opening a
casket was prohibited by Agency rules. In addition, the Union argued
that the penalty was excessive. The Agency admitted before the
Arbitrator that it had refused to reveal the name of the informing
witness. However, the Agency claimed that the grievant was afforded due
process, particularly in view of his admission during the investigation
that he had opened the casket. The Agency maintained that the grievant
was adequately informed of the reason for the suspension and was
provided with an opportunity to respond to the charge. The Agency also
claimed that as an employee of the Agency for almost 19 years, the
grievant knew or should have known of the prohibition against opening
caskets during burials.
The Arbitrator rejected the Union's contention that the Agency had
denied the grievant due process during the disciplinary proceedings
before the Agency. The Arbitrator noted that the Agency admitted that
it had refused to disclose the name of the person who had informed the
Agency that the grievant had opened the casket. The Arbitrator further
noted that the reason the Agency refused to disclose the informant's
identity was because the informant was fearful of what the informant
believed was the grievant's violent nature. The Arbitrator found that
notwithstanding the Agency's refusal to disclose the name of the
informant, the grievant was informed in detail of the reasons for the
disciplinary action and was given an opportunity to reply to the
allegation and to present matters in his own behalf. Moreover, the
Arbitrator stated that the disclosure of the name of the informant
"would seem to be unnecessary" "inasmuch as the Grievant had admitted to
opening the casket(.)" Award at 6. Accordingly, the Arbitrator ruled
that the Agency had afforded the grievant due process at the time the
Agency imposed the suspension.
Furthermore, the Arbitrator ruled that even if there were defects in
the process provided prior to arbitration, the defects were cured at the
arbitration hearing. The Arbitrator found that all the requirements of
due process were satisfied because at arbitration the grievant was
provided an opportunity to cross-examine witnesses against him and to
present witnesses and evidence in his own behalf. The Arbitrator noted
that by agreement with the grievant and his attorney, the informant
testified by telephone and was cross-examined by the grievant's
attorney.
On the basis of the evidence and testimony presented, the Arbitrator
determined that the Agency had established the alleged misconduct of the
grievant. The Arbitrator noted that the informant had testified that he
had observed the grievant open the casket as alleged and that two
management witnesses had testified that the grievant had admitted during
the investigation that he had opened the casket. The Arbitrator also
noted that at the arbitration hearing, the grievant never denied opening
the casket. The Arbitrator found that, instead, the grievant's defense
"seemed to be that he was unaware of the prohibition against opening
caskets(,)" and that he had opened the casket to determine the head-end
of the casket. Id. at 8.
The Arbitrator rejected the defense and the Union's contention that
the grievant did not have notice that opening a casket was prohibited by
Agency rules. The Arbitrator found that the Agency "presented
convincing evidence that employees of the (Agency) were aware of the
fact that they were not to open caskets." Id. at 5. The Arbitrator
noted that all of the Agency's witnesses testified to this fact and that
the grievant had signed an acknowledgement that he was aware of the
procedure for labeling the head-end of caskets. Accordingly, the
Arbitrator rejected the grievant's justification that he had opened the
casket to confirm the head-end.
On the issue of the appropriateness of the penalty, the Arbitrator
determined that "no evidence was introduced to indicate that such a
suspension was unauthorized by the (collective bargaining agreement),
inconsistent with past practice, or clearly excessive under the
circumstances." Id. at 8. Therefore, the Arbitrator upheld the penalty
imposed.
Accordingly, as the award, the Arbitrator denied the grievance.
A. Positions of the Parties
The Union contends that the award is contrary to law because the
Agency rule on which the Agency based the grievant's suspension does not
apply to the alleged misconduct of the grievant. The Union notes that
the grievant was suspended for violating Agency regulation M-40-2
(Administration, Operation and Maintenance of National Cemeteries),
Chapter 6, Paragraph 6.02 (Viewing of Remains in National Cemeteries),
which provides, as follows:
a. Facilities for viewing remains are not provided in national
cemeteries pursuant to VA policy.
b. Under no circumstances will the Cemetery Director, or the
designated representative, permit a casket to be opened after the
hearse bearing a closed casket has entered the cemetery.
The Union asserts that this regulation involves the relationship
between private parties and Agency representatives concerning the
viewing of remains in national cemeteries and in that context prohibits
open casket viewing of the deceased. The Union claims that the rule
does not apply to the situation involving the grievant and cannot
provide a basis for suspending the grievant. The Union argues that
because this rule is inapplicable and because the Agency failed to cite
any other rule or policy that applied to the alleged conduct of the
grievant, the suspension could not legally have been sustained and the
Arbitrator's award is, therefore, deficient.
The Agency contends that the Union's argument is frivolous.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is
contrary to law.
The grievant was suspended for 5 days for violating M-40-2, Chapter
6, Paragraph 6.02(b), which the Agency applies to prohibit the opening
of a casket for any reason in the cemetery. Before the Arbitrator, the
Union contended that the grievant did not have notice that opening a
casket was prohibited by Agency rules. The Arbitrator rejected the
Union's contention. The Arbitrator specifically determined that the
Agency "presented convincing evidence that employees of the (Agency)
were aware of the fact that they were not to open caskets." Id. at 5.
In our view, the Union fails to establish otherwise. We find that
the Union fails to demonstrate that the Agency's application of M-40-2
to prohibit Agency employees from opening a casket during a burial is
unreasonable. Furthermore, in view of the Arbitrator's finding that the
common understanding of Agency employees is that Agency rules prohibit
Agency employees from opening a casket during a burial, we conclude that
the Union provides no basis for finding that the grievant should not
have known of the prohibition. We find that the Union's exception
constitutes nothing more than an attempt to relitigate this issue before
the Authority and disagreement with the Arbitrator's findings of fact
and his evaluation of the evidence and testimony. Consequently, the
exception provides no basis for finding the award deficient. See, for
example, U.S. Department of the Air Force, Ogden Air Logistics Center,
Hill Air Force Base and American Federation of Government Employees,
Local 1592, 40 FLRA 1243, 1248 (1991) (Ogden ALC).
Accordingly, we will deny the exception.
A. Positions of the Parties
1. The Union
The Union contends that the award is deficient because the Agency
failed to advise the grievant that he had a right to remain silent
during pre-disciplinary discussions with Agency officials.
The Union notes that under Article XX, Section 3 of the collective
bargaining agreement, prior to proposing a formal disciplinary action,
management officials will discuss the matter with the employee involved.
That contractual provision provides that during this discussion, "(t)he
employee will be advised of his/her right to speak or remain silent
during the discussion . . . ." The Union claims that the Agency has
failed to show that the grievant was advised of his contractual right to
remain silent during the discussions with management officials.
2. The Agency
The Agency argues that this issue has been raised for the first time
in the Union's exceptions to the award. The Agency asserts that,
furthermore, the grievant did not have a right to remain silent pursuant
to Miranda v. Arizona, 384 U.S. 436 (1966), because there was never a
custodial interrogation of the grievant by law enforcement officers.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is
deficient.
The Agency claims that the issue of whether the grievant was advised
of his right to remain silent as required by Article XX, Section 3 of
the parties' collective bargaining agreement has been raised by the
Union for the first time in its exceptions to the award, and our review
of the record in this case supports the Agency's claim. Under section
2429.5 of the Authority's Rules and Regulations, arbitration awards are
not subject to review on the basis of any issue that could have been,
but was not presented to the arbitrator. U.S. Department of Defense
Dependents Schools, Alexandria, Virginia and Overseas Education
Association, 41 FLRA 982, 999 (1991); U.S. Department of the Treasury,
Bureau of Engraving and Printing, Washington, D.C. and Washington Plate
Printers Union, Local No. 2, International Plate Printers, Die Stampers
and Engravers, 41 FLRA 860, 865 (1991).
Accordingly, we will deny the exception.
A. Positions of the Parties
The Union contends that the award is contrary to section 7114(b)(4)
of the Statute.
The Union maintains that the identity of the informing witness was
necessary and relevant to the Union's duty to represent the grievant
during the grievance proceedings and that the Union "made the
appropriate requests." Exceptions at 4. The Union notes that,
nevertheless, the Agency refused to provide the information and that the
Arbitrator found that the refusal was not prejudicial because other
evidence sustained the imposition of discipline. The Union asserts that
the Arbitrator erred in finding that the Agency's refusal was not
prejudicial.
The Union argues that the Agency's refusal concerned the substantive
matter of information necessary for the Union to make an informed
judgment of whether to pursue arbitration of the grievance, and,
therefore, the refusal was not subject to a harmless-error analysis,
which, according to the Union, applies only to procedural matters. The
Union also argues that the Arbitrator erred in finding that other
evidence supported imposition of the suspension. The Union maintains
that the grievant admitted only to opening the latch of the casket and
not the casket itself, and that the Arbitrator acknowledged that the
grievant subsequently denied the misconduct. The Union, therefore,
claims that the testimony of the informing witness was essential to the
issue of whether the suspension was warranted and that the Union was
entitled to be informed of the identity of the informing witness as a
matter of law under section 7114(b)(4).
The Agency does not address this exception.
B. Analysis and Conclusions
The Union contends that the award is deficient because the Union was
entitled to be informed of the identity of the informant under section
7114(b)(4) of the Statute, and the Agency failed to provide the
information. We do not find the award to be deficient on this basis.
The Arbitrator identified the issues presented as whether the
grievant was denied constitutional due process by the Agency's refusal
to disclose the identity of the informant and whether the grievant was
disciplined for just cause and the penalty was appropriate. The
Arbitrator determined that the Agency afforded the grievant due process
and that the suspension was for just cause and the penalty was
appropriate. Although the Union clearly argued to the Arbitrator that
the failure to provide the informant's identity deprived the grievant of
constitutional due process, there is no indication in the record before
us that the Union argued to the Arbitrator that the failure to provide
that information violated section 7114(b)(4) of the Statute.
As we noted with respect to the previous exception, under section
2429.5 of the Authority's Rules and Regulations, arbitration awards are
not subject to review on the basis of any issue that could have been,
but was not presented to the arbitrator. As there is no indication that
the Union argued to the Arbitrator that the failure to provide the
informant's identity violated section 7114(b)(4), no basis is provided
for finding that the award is contrary to that section of the Statute.
Furthermore, to the extent that the Union is arguing that the award
is deficient because the Arbitrator erred in finding that the Union was
not prejudiced by the Agency's refusal to disclose the identity of the
informant and that other evidence supported the suspension, the Union's
arguments constitute nothing more than disagreement with the
Arbitrator's findings and conclusions and his evaluation of the evidence
and testimony. Consequently, the arguments provide no basis for finding
the award deficient. See Ogden ALC, 40 FLRA at 1248.
Accordingly, we will deny the exception.
A. Positions of the Parties
The Union contends that the award is deficient because, contrary to
the finding of the Arbitrator, the 5-day suspension was not a reasonable
penalty. The Union further contends that the Arbitrator erred by
placing the burden on the Union to prove that the penalty was
unauthorized by the agreement, inconsistent with past practice, or
clearly excessive under the circumstances. The Union argues that the
Agency bears the burden of proof because "it is in a better position to
do so." Exceptions at 9. The Union also argues that the Agency bears
the burden of proof on appropriateness of the penalty because Article
XX, Section 4 of the agreement requires that the Agency's final
disciplinary action "will be reasonable."
The Agency contends that the Arbitrator properly found that the
penalty was appropriate.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is
deficient.
We have repeatedly held that unless a specified standard of proof is
required, arbitrators have the authority to establish whatever standard
they consider appropriate, and we will not find the award deficient on
this basis. For example, U.S. Department of Health and Human Services,
Social Security Administration, Office of Hearings and Appeals and
American Federation of Government Employees, Local 3615, 39 FLRA 407,
412 (1991) (Office of Hearings and Appeals); U.S. Department of the
Navy, Naval Aviation Depot, Norfolk, Virginia and International
Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217,
222 (1990) (Naval Aviation Depot). Furthermore, unless otherwise
provided, establishing the standard encompasses specifying which party
has the burden of proof under the established standard. See Office of
Hearings and Appeals, 39 FLRA at 412; Navy Aviation Depot, 36 FLRA at
222.
In this case, the Union fails to demonstrate that law, governing
regulation, or the collective bargaining agreement specifies that the
Agency has the burden of proof on the issue of the appropriateness of
the penalty in a case of a suspension of 14 days or less covered by 5
U.S.C. chapter 75, subchapter I. Clearly, neither subchapter I nor 5
C.F.R. part 752, subpart A specifies the standard of proof or the party
bearing the burden of proof on the issue of the penalty. Moreover,
there is no statutory provision corresponding to 5 U.S.C. Section 7701,
which specifies that the agency bears the burden of proof by a
preponderance of the evidence on the penalty issue in cases of adverse
actions covered by 5 U.S.C. chapter 75, subchapter II. See U.S.
Department of Justice, Immigration and Naturalization Service, New York
District Office and American Federation of Government Employees,
Immigration and Naturalization Service Council, Local 1917, 42 FLRA 650,
656 (1991). In addition, we are not persuaded that Article XX, Section
4, merely by requiring reasonableness on the part of the Agency,
specifies that the Agency bears the burden of proof on the issue of
appropriateness of the penalty when a disciplinary action is submitted
to arbitration. Consequently, the Union's contention that the
Arbitrator erred by placing the burden on the Union to prove that the
penalty was inappropriate provides no basis for finding the award
deficient. See Office of Hearings and Appeals, 39 FLRA at 412-13; Navy
Aviation Depot, 36 FLRA at 222.
We also find that the Union's contention that, contrary to the
finding of the Arbitrator, the penalty was not reasonable fails to
establish that the award is deficient. The Union's contention
constitutes nothing more than disagreement with the Arbitrator's finding
and conclusion on the issue of the appropriateness of the penalty and
provides no basis for finding the award deficient. See U. S.
Department of Justice, Immigration and Naturalization Service,
Jacksonville, Florida and American Federation of Government Employees,
National Border Patrol Council Local 3725, 36 FLRA 928, 934 (1990)
(Authority reconfirmed that it is for the arbitrator to determine
whether a disputed disciplinary action was warranted and, if so, whether
the penalty assessed was reasonable).
Accordingly, we will deny the exception.
A. Positions of the Parties
1. The Union
The Union contends that the suspension could not be sustained because
the Agency never disclosed the identity of the informant and that,
therefore, the award is deficient. The Union argues that the failure to
disclose the informant's identity denied the grievant the process due
him under the Supreme Court's decision in Cleveland Board of Education
v. Loudermill, 470 U.S. 532 (1985) (Loudermill), and under 5 C.F.R.
Section 752.404 and the parties' collective bargaining agreement.
The Union asserts that suspensions of nonprobationary, competitive
service Federal employees for 14 days or less invoke constitutional due
process protections. In support of this assertion, the Union cites the
decision in Goss v. Lopez, 419 U.S. 565 (1975) (Goss) and Click v.
Board of Police Commissioners, 609 F. Supp. 1199 (W.D.Mo. 1985) (Click).
The Union maintains that under Loudermill constitutional due process
includes at a minimum: notice, an explanation of the evidence, and an
opportunity to be heard. More specifically, the Union argues that
before an employee can be suspended, constitutional due process
requires, as a necessary component of the explanation of the agency's
evidence, the disclosure of the names of witnesses who have made
allegations against the employee. In support of this argument, the
Union cites the decisions in Riggins v. Board of Regents, 790 F.2d 707
(8th Cir. 1986) and Wells v. Dallas Independent School District, 793 F.
2d 679 (5th Cir. 1986).
In addition, the Union argues that the Arbitrator erred "by declaring
that even assuming that a procedural defect occurred by the Agency's
reluctance to release the informer's name, that defect was harmless
insomuch as the Grievant 'had admitted to opening the casket' and that
the Grievant was afforded the full opportunity to cross-examine the
Agency's witnesses at the post-discipline hearing." Exceptions at 6.
The Union claims that the Arbitrator ignored the mandatory nature of the
constitutional due process that must be afforded prior to the imposition
of discipline regardless of whether adequate post-discipline procedures
exist. The Union further claims that in any event, the constitutional
violations persisted because the identity of the informant was not
disclosed even at the arbitration hearing.
The Union similarly maintains that, under 5 C.F.R. Section 752.404(
b)(1), /1/ before an employee can be suspended the employee is entitled
to review the material that is relied on to support the proposed
suspension. The Union claims that under section 752.404, the grievant
was entitled to be informed of the name of the person who had made the
allegation against him.
The Union further claims that the Agency violated the collective
bargaining agreement by not disclosing the identity of the informant.
The Union notes that under Article XX, Section 3, an employee who is the
subject of a proposed disciplinary action "will be advised of known
facts concerning the matter giving rise to the consideration of the
disciplinary action." The Union asserts that the identity of the
informant was part of the facts known to the Agency and that,
consequently, the grievant should have been advised of the name of the
informant.
2. The Agency
The Agency contends that the grievant was afforded due process. The
Agency maintains that the right to confront witnesses is not absolute
under 5 U.S.C. chapter 75 and that, consequently, due process was
satisfied when the informant testified at the hearing subject to
cross-examination by the Union's attorney.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is
deficient.
1. Constitutional Due Process
In resolving the Union's claim that the Agency denied the grievant
the process that was due him under Loudermill, we must determine: (1)
whether the 5-day suspension deprived the grievant of a property
interest that is protected by the Constitution; and (2) if so, whether
the process by which the suspension was imposed was constitutionally
adequate. Loudermill, 470 U.S. at 538; Board of Regents v. Roth, 408
U.S. 564, 576-78 (1972) (Roth).
As the Court noted in Loudermill, "(p)roperty interests are not
created by the Constitution, 'they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as . . . law . . .'" Loudermill, 470 U.S. at 538
(quoting Roth, 408 U.S. at 577). In Arnett v. Kennedy, 416 U.S. 134
(1974) (Arnett), the Supreme Court held that under law and executive
order, nonprobationary, competitive service and preference-eligible,
excepted service Federal employees were guaranteed continued employment
absent such cause as will promote the efficiency of the service and
that, consequently, such employees had a legitimate claim of entitlement
that constituted a property interest under the Fifth Amendment. In
Stephen v. Department of the Air Force, 47 MSPR 672, 681 (1991)
(Stephen), the Merit Systems Protection Board held that Federal
employees have a constitutionally protected property interest in their
employment and have a constitutional right to due process under
Loudermill in actions covered by 5 U.S.C. Sections 7511-7513.
Similar to section 7513, section 7503 provides that nonprobationary,
competitive service Federal employees may not be suspended for 14 days
or less except for such cause as will promote the efficiency of the
service. Because such employees cannot be suspended for 14 days or less
absent cause, we find in agreement with the Union that such employees
have a constitutionally protected property interest in their employment
without such suspensions. See Arnett; Stephen; see also Gillard v.
Norris, 857 F.2d 1095 (6th Cir. 1988) (Gillard) (because the employee
was a state civil servant who could not be removed or demoted on the
basis of a nonmerit factor, the employee had a constitutionally
protected property interest in his continued employment); Garraghty v.
Jordan, 830 F.2d 1295 (4th Cir. 1987) (Garraghty) (because the employee
was a state civil servant who could be removed or suspended only for
cause, the employee had a constitutionally protected property interest
in his continued employment). Likewise, because the grievant had a
property interest in his employment, we find in agreement with the Union
that the Agency could not deprive him of that interest by suspending him
without due process of law.
"(O)nce it is determined that the Due Process Clause applies, 'the
question remains what process is due.'" Loudermill, 470 U.S. at 541
(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). However, the
very nature of due process precludes any notion of "inflexible
procedures universally applicable" to every situation. Cafeteria
Workers v. McElroy, 367 U.S. 886, 895 (1961).
In Loudermill, a tenured public employee was removed and under
applicable state law was entitled to a post-removal administrative
hearing to contest the action. The Court determined that before public
employees with a property interest in their continued employment can be
removed, due process requires, at a minimum, that they be given notice
of the charges against them and "some kind of a hearing. . . ."
Loudermill, 470 U.S. at 542 (quoting Roth, 408 U.S. at 569-70). More
specifically, the Court held that prior to removal, "the tenured public
employee is entitled to oral or written notice of the charges against
him, an explanation of the employer's evidence, and an opportunity to
present his side of the story." Id. at 546.
The Court arrived at these requirements by balancing the competing
interests of: (1) the employee in retaining employment; (2) the
government in the expeditious removal of unsatisfactory employees and
the avoidance of administrative burdens; and (3) the risk of erroneous
removal. Id. at 542-43. However, the Court advised that "(t)he
formality and procedural requisites for the hearing can vary, depending
upon the importance of the interests involved and the nature of the
subsequent proceedings." Id. at 545 (quoting Boddie v. Connecticut, 401
U.S. 371, 378 (1971)).
Earlier, in Goss, 419 U.S. 565, the Court had addressed the
procedural due process requirements when a student is suspended from
school. The Court concluded that prior to suspension, due process
requires "that the student be given oral or written notice of the
charges against him and, if he denies them, an explanation of the
evidence the authorities have and an opportunity to present his side of
the story." Goss, 419 U.S. at 581. The Court advised:
There need be no delay between the time "notice" is given and the
time of the hearing. In the great majority of cases the
disciplinarian may informally discuss the alleged misconduct with
the student minutes after it has occurred. We hold only that, in
being given an opportunity to explain his version of the facts at
this discussion, the student first be told what he is accused of
doing and what the basis of the accusation is.
Id. at 582. In balancing the competing interests, the Court found that,
despite the student's interest in not being unfairly excluded from the
educational process, "further formalizing the suspension process and
escalating its formality and adversary nature may not only make it too
costly as a regular disciplinary tool but also destroy its effectiveness
as part of the teaching process." Id. at 583.
Courts have used these two cases as benchmarks of constitutional due
process in determining what process is due for short-term suspensions.
In Garraghty, 830 F.2d 1295, and Gillard, 857 F.2d 1095, public
employees were suspended for 5 days and 3 days, respectively. Under
applicable state law, neither employee could be suspended absent cause,
but neither employee was entitled to a post-suspension administrative
appeal to contest the suspension. Both courts indicated that,
constitutionally, a short-term suspension that invoked due process
protections would require only predecisional proceedings and would not
require post-suspension proceedings. In addition, after weighing the
competing interests identified in Loudermill in terms of short-term
suspensions, both courts held that the predecisional process due
required proceedings no more formal and extensive than those required by
Loudermill (oral or written notice of the charges, an explanation of the
employer's evidence, and an opportunity for employees to present their
side of the story) and no less extensive than those required by Goss
(oral or written notice of the charges and then, if the individual
denies them, an explanation of the authorities' evidence, and an
opportunity for the individual to present his or her side of the story).
Gillard, 857 F.2d at 1099; Garraghty, 830 F.2d at 1300; see also
Click, 609 F. Supp. 1199, 1206-07 (court indicated that constitutionally
a short-term suspension invoking due process protection required only a
predecisional hearing, and the court held that the hearing is not
required to be formal with an opportunity to secure counsel, to confront
and cross-examine witnesses supporting the charge, or to call witnesses
to support the employee's version of the incident).
In determining what process is constitutionally due nonprobationary,
competitive service Federal employees suspended for 14 days or less, we
are persuaded by the reasoning and conclusion of the courts in Gillard,
Garraghty, and Click. We find that, constitutionally, such employees
are not due post-suspension proceedings and are due predecisional
proceedings no more formal or extensive than those required by
Loudermill and no less extensive than those required by Goss. Viewing
this case in terms of these requirements, we conclude that the process
provided the grievant during the proceedings before the Agency satisfied
the requirements of Loudermill and, consequently, was constitutionally
sufficient.
The Union does not contest the sufficiency of the notice of the
charge against the grievant or the opportunity provided the grievant to
reply to the charge. Therefore, we need not address whether the
requirements of Loudermill were met in these respects. However, in
arguing that the process provided the grievant during the proceedings
before the Agency was constitutionally inadequate, the Union contests
whether the Agency adequately explained its evidence. Specifically, the
Union claims that because the Agency refused to disclose the identity of
the informant during the predecisional stage, the Agency failed to
adequately explain its evidence, and the predecisional process was,
therefore constitutionally deficient. We disagree. It is clear that
although the predecisional process is "necessary", it "need not be
elaborate." Loudermill, 470 U.S. at 545. The proposed suspension
explicitly informed the grievant of the rule that he had allegedly
violated and the informant's allegation against him, even though the
informant's identity was not disclosed. In our view, this adequately
explained and notified the grievant of the evidence on which the
suspension was based. See Schleck v. Ramsey County 939 F.2d 638, 642
(8th Cir. 1991) (constitutional due process did not require the public
employer to disclose all of the details of the disciplinary charges,
such as the names of the accusers as demanded by the employees); Poole
v. Stephens, 688 F. Supp. 149, 154 (D.N.J. 1988) (revelation of the
identity of an informant is not constitutionally required at the
predecisional stage).
In claiming that the disclosure of the identity of the informant was
constitutionally mandated, the Union has misconceived the purpose of the
predecisional process. As Justice White noted in Arnett, "the
pretermination hearing is not held for the purpose of making . . . an
ultimate determination. . . . The function of the pretermination
hearing is, and no more is required by due process, to make a
probable-cause determination as to whether the charges brought against
the employee are or are not true." 416 U.S. at 200 (White, J.,
concurring in part and dissenting in part). Justice White restated this
purpose for the Court in Loudermill: "(T)he pretermination hearing need
not definitively resolve the propriety of the discharge. It should be
an initial check against mistaken decisions -- essentially, a
determination of whether there are reasonable grounds to believe that
the charges against the employee are true and support the proposed
action." 470 U.S. at 545-46. We find that the explanation of the
evidence provided the grievant satisfied the purposes of the
predecisional process.
In our view, the essence of the Union's claim in this case is that
the employee has the right to scrutinize the Agency's case prior to
suspension. We find such a claim is without merit and would transform
the predecisional process into an evidentiary hearing that is simply not
required. See Pedersen v. Ramsey County, 697 F. Supp. 1071, 1078
(D.Minn. 1988) (refusal to disclose name of an informant did not render
predecisional process constitutionally deficient; employee has no right
to scrutinize the employer's case prior to discipline). Indeed, what
the Union would have us do here, in a case where the Arbitrator found
that the grievant had admitted the alleged misconduct, is to turn the
predecisional process into a mini-trial -- a position that was
specifically rejected by the U.S. Court of Appeals for the Sixth Circuit
in Loudermill, on remand, based on its reading of what the Supreme Court
had held. Loudermill v. Cleveland Board of Education, 844 F.2d 304,
310-11 (6th Cir. 1988) (on remand).
In addition, we view the Arbitrator's finding that the grievant
admitted the alleged misconduct during the investigation as a factor
that further supports our determination that the process provided the
grievant was not constitutionally deficient. See Boals v. Gray, 775 F.
2d 686, 690 (6th Cir. 1985) (process by which the employee was suspended
met constitutional standards, in part, because the employee did not deny
the charges during the predecisional stage of the disciplinary action).
We also find that the Arbitrator's recognition that the identity of the
informant was not disclosed by the Agency because of the informant's
fear of the grievant constitutes an additional factor that supports our
determination. See Los v. Wardell, 771 F. Supp. 266, 270 (C.D.Ill.
1991) (need to protect others from a violent individual is a legitimate
consideration in determining what predeprivation procedures are
constitutionally due).
We find that the cases relied on by the Union are inapposite. All
the cases cited for the proposition that names of witnesses must be
disclosed involved removals of public employees, rather than short-term
suspensions, and involved the process required for post-removal
proceedings. Simply stated, we hold that the disclosure of the identity
of the informant was not constitutionally compelled and that, therefore,
the Union provides no basis for finding the award deficient. As
recognized by the court in Garraghty in weighing the competing interests
with respect to short-term suspensions, "(r)ealities of the work place .
. . require that authority be respected and that discipline be swift."
830 F.2d at 1302.
2. 5 C.F.R. Section 752.203(b)
The Union claims that because an employee is entitled to review the
material on which an agency relies to support a proposed suspension, the
grievant was entitled to have been informed of the name of the
informant. As we noted with respect to due process requirements, the
proposed suspension explicitly informed the grievant of the rule that he
had allegedly violated and the informant's allegation against him, even
though the informant's identity was not disclosed. We find that the
Union fails to establish that refusing to disclose the name of the
informant deprived the grievant of review of the material on which the
Agency relied to support the proposed 5-day suspension within the
meaning of section 752.203(b). The Union provides no evidence, rulings,
or citations of authorities that would support its claim that the
process provided the grievant failed to comply with section 752.203(b),
and our review of the regulations, including Federal Personnel Manual
chapter 752, have found none. In view of our determination that the
process provided the grievant adequately explained the evidence and was
not constitutionally deficient, we are not convinced that in the
circumstances of this case, the material that the grievant was entitled
to review under section 752.203(b) necessarily included the name of the
informant.
3. The Collective Bargaining Agreement
The Union has also claimed that the award is deficient because the
Agency violated the collective bargaining agreement. The Union notes
that under Article XX, Section 3, an employee who is the subject of a
disciplinary action is entitled to be advised of the facts known to the
Agency. The Union asserts that the informant's identity was a fact
known to the Agency and should have been disclosed to the grievant. We
view the Union's claim as a contention that by failing to find that the
process provided the grievant was deficient, the award fails to draw its
essence from the collective bargaining agreement, and we conclude that
the Union fails to establish that the award is deficient.
We will find that an award is deficient because it fails to draw its
essence from the collective bargaining agreement when the appealing
party establishes that the award: (1) cannot in any rational way be
derived from the agreement; (2) is so unfounded in reason and fact, and
so unconnected with the wording and the purpose of the agreement as to
manifest an infidelity to the obligation of the arbitrator; (3)
evidences a manifest disregard of the agreement; or (4) does not
represent a plausible interpretation of the agreement. For example, U.
S. Department of the Air Force, Carswell Air Force Base, Texas and
American Federation of Government Employees, Local 1364, 43 FLRA 1266,
1269 (1992) (Carswell AFB). The Union fails to demonstrate that the
award is deficient under any of these tests.
In this case, the Arbitrator determined that the Agency had afforded
the grievant due process. He noted that the grievant was informed in
detail of the basis for the proposed suspension and that the name of the
informant "would seem to be unnecessary" because the grievant had
admitted opening the casket, and he acknowledged that the Agency refused
to disclose the identity of the informant because the informant was
fearful of the grievant. Award at 6. Thus, the Arbitrator did not
consider the informant's identity to be a material fact in determining
whether the grievant had engaged in the misconduct alleged. In view of
these circumstances, we are not persuaded that the Arbitrator's
conclusion that the Agency afforded the grievant due process, despite
refusing to disclose the informant's identity, disregards the agreement
provision providing for disclosure of facts known to the Agency or is
irrational, implausible, or unfounded. See Carswell AFB, 43 FLRA at
1270. Therefore, no basis is provided for finding that the award fails
to draw its essence from the collective bargaining agreement.
Accordingly, we will deny the exception.
The Union's exceptions are denied. /2/
(1) Although the Union contends that under 5 C.F.R. Section 752.404(
b)(1) the grievant was entitled to review the material on which the
Agency relied to support the proposed 5-day suspension, section
752.404(b)(1) does not apply to suspensions of 14 days or less.
However, section 752.203(b) provides for the same entitlement with
respect to suspensions of 14 days or less. Accordingly, we will
consider the applicable provision.
(2) To the extent that the Agency requests in its opposition to the
Union's exceptions that the Authority direct the Union to pay the
Agency's arbitration costs because the Union's exceptions are frivolous,
we deny the request. Neither the Statute nor the Authority's Rules and
Regulations authorize the Authority to direct that one party pay the
arbitration costs of the other party as a sanction for filing frivolous
exceptions to an arbitration award. Moreover, as our decision in this
case indicates, the Union's exceptions are not frivolous.
45 FLRA 1154
45 FLRA No. 115
Int'l. Assoc. of Machinist and Aerospace Workers, Local Lodge 2297
and U.S. Dept. of the Navy, Naval Aviation Depot, Cherry Point, North
Carolina, Case No. 0-NG-1561 (38 FLRA 1451) (Decided September 9, 1992)
NEGOTIABILITY DETERMINATION
REMAND
"VITALLY AFFECTS" TEST
This case came before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit in
United States Department of the Navy, Naval Aviation Depot, Cherry
Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry
Point).
In its earlier decision, the Authority found that, with one exception
no longer at issue, the two disputed proposals, vitally affected the
working conditions of employees in the bargaining unit and were
consistent with applicable law or regulations. Accordingly, the
Authority concluded that both of the proposals were negotiable.
Proposal 1 required that the area of consideration for promotion
vacancies include all activities located at the Marine Corps Air
Station, Cherry Point. Proposal 2 involved various aspects of an open
space parking policy.
On review of the Authority's decision and order, the court held that
the Authority's construction of the "vitally affects" test was
inconsistent with the Federal Service Labor-Management Relations Statute
(the Statute) and with private sector precedent. Therefore, based on
the court's decision in Cherry Point, the Authority concluded, on
remand, that the proposal were not within the duty to bargain.
Case No. 0-NG-1561, (38 FLRA 1451 (1991))
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL
LODGE 2297
(Union)
U.S. DEPARTMENT OF THE NAVY, NAVAL AVIATION DEPOT, CHERRY POINT,
NORTH CAROLINA
(Agency)
September 9, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit in
United States Department of the Navy, Naval Aviation Depot, Cherry
Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry
Point).
In our earlier decision in this case, we found that, with one
exception no longer at issue, the two disputed proposals, which are set
forth below, vitally affected the working conditions of employees in the
bargaining unit and were consistent with applicable law or regulations.
Accordingly, the Authority concluded that both of the proposals were
negotiable.
On review of the Authority's decision and order, the court held that
the Authority's construction of the "vitally affects" test was
inconsistent with the Federal Service Labor-Management Relations Statute
(the Statute) and with private sector precedent. Cherry Point, 952 F.2d
at 1436. In the court's view, the vitally affects test is appropriately
used "to define the limited circumstances in which subjects not normally
seen to be within the compass of mandatory bargaining -- e.g., the terms
of a relationship between the employer and a third party -- may become
mandatory subjects due to their effect on bargaining unit employees."
Id. at 1440. The court added that the test "is not implicated, however,
merely because a union proposal, which is otherwise within the scope of
mandatory bargaining, would, if accepted, have some impact on persons
outside the bargaining unit." Id. (emphasis in original). The court
recognized that most union bargaining demands have some "extra-unit
effects" on non-unit personnel but held that such effects do not alter
an employer's duty to bargain over mandatory subjects of bargaining.
Id. at n.6. The court found that "proposals that principally relate to
the conditions of employment of bargaining unit personnel are within the
traditional scope of mandatory bargaining." Id. at 1441. According to
the court, the vitally affects test is not relevant to such proposals.
In addressing the applicability of the vitally affects test, the
court differentiated among four groups: non-bargaining unit employees,
non-employees, management and supervisory personnel, and employees in
other bargaining units. According to the court, the vitally affects
test applies only when the interests of non-bargaining unit personnel
are "directly implicated" by a union proposal or, phrased alternatively,
when a proposal "purports to regulate the terms and conditions of
employment of non-unit employees." Id. In such circumstances, the
proposal would fall outside the mandatory scope of bargaining absent a
showing that the proposal vitally affects conditions of employment of
bargaining unit employees. The court reached the same conclusion as to
non-employees, finding that a union may bargain over "a non-employee
matter (that) vitally affects bargaining unit interests. . . . Id. at
1442. However, the court held that the vitally affects test does not
apply in circumstances where a union seeks to regulate through
collective bargaining the conditions of employment of employees in other
bargaining units and management and supervisory personnel who are
excluded by the Statute from bargaining units. Id. at 1441.
The court held that the two proposals at issue in this case "are
non-negotiable to the extent that they purport to regulate the
conditions of employment of supervisory personnel and employees in other
bargaining units." Id. at 1443. Accordingly, the court vacated the
Authority's decision and order and remanded this case to the Authority
for further proceedings consistent with the court's opinion. In
remanding, the court noted that:
The only possibly unresolved issue is whether there are non-unit,
non-supervisory employees at Cherry Point whose conditions of
employment are directly implicated by the Local 2297 proposals.
If there are such persons, the Authority can address on remand
whether the "vitally affects" test is satisfied with respect to
those persons on the facts of this case.
Id.
Upon receipt of the remand, the Authority issued an order directing
the parties to file supplemental statements setting forth their
positions as to: (1) whether the Authority should proceed further on
the negotiability issues; and (2) if further proceedings were required,
the effect of the court's decision in Cherry Point on the unresolved
issue. In response to the order, the Agency filed a supplemental
statement; the Union, however, did not.
Proposal 1
The employer agrees to use (sic) the maximum possible extent the
skills of employees in the Unit. The area of consideration for
promotion announcements shall be the Naval Air Rework Facility
(now the Naval Aviation Depot), Marine Corps Air Station, and U.
S. Naval Hospital, Cherry Point, N.C., unless this area will not
supply sufficient candidates for the vacancy. The Employer will
consult with the Union prior to extending the area of
consideration. Consideration may also be made of voluntary
applications of current agency employees outside the area of
consideration. Every reasonable effort will be made by the
Employer to obtain identical information on non-unit candidates as
is obtained for Unit candidates. Non-unit candidates shall be
evaluated as nearly as possible by the same criteria used to
evaluate unit candidates. (Only the underlined language is in
dispute.)
Proposal 2
Section 1: A reserved parking space will be provided for the
Union President, the Vice-President, Secretary & Treasurer, and
five (5) Chief Stewards. Such parking spaces will be within
reasonable walking distance of assigned working areas. In the
event that an employee holds two of the above Union Offices, that
official will only be assigned one reserved parking space.
Section 2: The Employer agrees that all other spaces outside the
fence shall be open parking for all employees and the Employer on
a first come first serve basis without regards to whether or not
they are in the unit. Intent: To give unit employees equal
access to all open parking areas. b. Exceptions are as follows:
(1) Those spaces provided for in Section 1 above. (2) Those
officials of exclusively recognized Unions which are specifically
provided for by a negotiated agreement. (3) There shall be
sufficient spaces set aside for those handicapped employees who
have special problems relating to their ability to walk to and
from their work site. In this regard, prior to considering a
request for special parking, the handicapped employee must obtain
a statement from the Industrial Medical Officer certifying that
the employee's handicap is so severe, and so limits his ability to
ambulate and that special consideration is warranted. (4) Van Pool
reserved spaces. (5) A number of spaces equal to the number of
reserved spaces for the union as set forth in Section 1 and
Section 2 (2) may be reserved outside the fence for the exclusive
use of the Employer as Executive spaces. /1/ (6) Spaces for
privately owned vehicles which are regularly used for Government
business at least twelve (12) days per month and which qualify for
reimbursement for mileage and travel expenses under Government
travel regulations. c. The currently assigned Union Official
spaces will not be relocated without mutual agreement of both
parties. Section 3: If additional parking lots are opened in the
future, which are to be other than open parking, the Employer
agrees to notify the Union and given (sic) them the opportunity to
meet and confer over any reserved spaces. Section 4: Upon request
the Union shall have access to a current display of all
individuals assigned the above cited reserved parking spaces.
NOTE: It is acknowledged and understood that the above provisions
regarding parking may have to be changed to comply with
requirements and restrictions mandated by higher authority. Any
changes will be in compliance with and administered in accordance
with such higher authority directives. Section 5: Changes to the
provisions of this Article can be made by the mutual agreement of
the Employer and the Union. (Only the underlined language is in
dispute.) III. Positions of the Parties
The Agency states that although most of the non-supervisory personnel
at the Cherry Point installation are included in bargaining units, one
group of non-supervisory employees is not represented. Specifically,
the Agency states that, while there are bargaining units that include
some of the General Schedule (GS) employees of the Naval Aviation Depot,
the bulk of the Depot's GS workforce is unrepresented.
The Agency asserts that there is "no proposal currently before the
Authority which does not implicate supervisory employees and employees
in other bargaining units." Agency's Supplemental Statement at 4. The
Agency contends that the proposals currently before the Authority would
require extensive revision in order to limit the scope of their
application to members of the Union's bargaining unit and non-unit,
non-supervisory employees. The Agency argues that any such revisions
should be left for the parties to the collective bargaining relationship
and should not be undertaken by the Authority.
Additionally, the Agency states that subsequent to the filing of the
petition in this case, the parties entered into a collective bargaining
agreement that contained provisions addressing the area of consideration
for filling positions within the bargaining unit and parking at the
facility. According to the Agency, that agreement has expired and
"renegotiation of the agreement is anticipated." Id. at 7. The Agency
argues that the Authority should forego any further action on these
proposals and allow the parties to pursue the issues at the bargaining
table.
Noting that the scope of the proposals would require drastic
reduction in order to conform to the limits placed on the application of
the vitally affects test by the court's decision, the Agency questions
whether the Union would be interested in negotiating over an area of
consideration that is limited to its bargaining unit and the
unrepresented, non-supervisory GS positions at the Depot. In this
regard, the Agency states that the latter positions "are not the types
of positions which members of the union's bargaining unit traditionally
seek for career advancement." Id. at 8. Insofar as the parking proposal
is concerned, the Agency argues that there is no apparent reason why the
Union would want to negotiate a parking policy that would apply only to
the non-unit, non-supervisory employees in addition to the employees in
its bargaining unit. In furtherance of its argument that the Union has
no interest in negotiating parking policy for the unrepresented
employees at the Depot, the Agency suggests that, under the court's
decision in Cherry Point, the Union "can propose any method it chooses,
which does not run afoul of applicable laws and regulations, to govern
the priority for the allocation of parking spaces to its unit members."
Id. at 9-10.
The Agency argues that neither of the proposals meets the vitally
affects test. In this regard, the Agency, relying on a dictionary
definition, contends that the term "vital" refers to matters that are
"of the utmost importance" or "essential." Id. at 14. The Agency
asserts that, under private sector precedent, the vitally affects test
"is not (met) except in cases of critical importance to unit members,
such as when their very employment is threatened." Id. at 15.
The Agency argues that a proposal for an area of consideration with
the narrow scope demanded by the court's decision does not meet the
vitally affects test. The Agency asserts that in order to comply with
the court's decision Proposal 2 must be limited to the employees in the
Union's bargaining unit and non-unit, non-supervisory employees. The
Agency contends that there is no basis for concluding that "allowing the
union to negotiate a parking policy for the non-unit, non-supervisory
employees would have any impact on the interests of its unit members,
let alone vitally affect those interests." Id. at 16 (emphasis in
original).
As noted earlier, the Union did not file a supplemental statement.
As formulated by the court, the only issue before us is whether the
proposals are negotiable to the extent that "there are non-unit,
non-supervisory employees at Cherry Point whose conditions of employment
are directly implicated by the. . . proposals." Cherry Point, 954 F.2d
at 1443.
Prior to the issuance of our initial decision in this case, the Union
had stated that its intent as to Proposal 1 was to negotiate the
"minimum area of consideration for promotion announcements." Petition at
2. The Union argued that the past practice of one area of consideration
for all of the activities located at the Cherry Point installation had
operated well and that the Agency had not demonstrated any need for a
smaller area of consideration. The Union stated, "(w)e hold the
position that the minimum area of consideration should include all
employees of the Marine Corps Air Station, Cherry Point." /2/ Reply
Brief at 1.
As written, Proposal 1 establishes a minimum area of consideration
that encompasses all three activities located at the Cherry Point
installation. The Union's statements concerning the intent of the
proposal make clear that the Union specifically seeks to retain a
minimum area of consideration that encompasses all employees at the
Cherry Point installation. As written and explained by the Union,
therefore, Proposal 1 is not consistent with a construction that it
seeks or allows for an area of consideration of any proportions less
than installation-wide, such as one limited to employees in the Union's
bargaining unit and non-unit, non-supervisory employees. Under the
circumstances that exist in this case, placing such limitations on the
proposal would require substantive revision of the proposal.
Under the Authority's regulations, a proposal that has not been
submitted to an agency for a declaration of nonnegotiability is not ripe
for review in a negotiability appeal. See 5 C.F.R. Section 2424.1 and
2424.3; National Treasury Employees Union and U.S. Department of the
Treasury, Bureau of Alcohol, Tobacco and Firearms, 38 FLRA 263, 268-69
(1990). Furthermore, we note that the Authority does not issue advisory
opinions. 5 C.F.R. Section 2429.10. Therefore, in the absence of any
basis in the record of this case for construing Proposal 1 as defining
an area of consideration that is limited to the vacancies of employees
in the Union's bargaining unit employees and those of non-unit,
non-supervisory employees, it is not appropriate to rule on the
negotiability of a proposal for such an area of consideration in this
case. We conclude, based on the court's decision in Cherry Point, that
Proposal 1 is nonnegotiable.
The second proposal establishes a parking policy that applies to "all
employees and the Employer." Based on this wording and statements that
the Union submitted prior to our earlier decision in this case, it is
clear that the Union intends that the parking policies set forth in this
proposal will apply to all personnel located at the Cherry Point
installation. For example, the Union stated that it was seeking "to
implement a fair for all parking policy." Reply Brief at 3. The Union
further contended that:
There has been a standing practice since 1968 that Local Lodge
2297, the exclusive representative of the vast majority of
employees in the Depot, would lead negotiations concerning
parking. We have a vital interest in making sure no other unit
negotiates a parking policy that would unduly penalize our unit
members.
Statement of Position of the Union in Regards to Order Dated August 25,
1989, at 4.
Additionally, the Union stated:
(N)o other Union has disagreed with our proposal or concept of
parking. . . . The Union is not primarily interested in special
parking for Union officials, but rather is concerned for all unit
and(,) yes, non-unit employees. . . .
Reply Brief at 4.
Proposal 2, as currently written and explained by the Union, is not
consistent with a construction that limits its terms to employees who
are in the Union's bargaining unit and non-supervisory employees who are
not in any bargaining unit. As with Proposal 1, providing for such
limitations would require substantive revision of this proposal, which
is not the Authority's role. Because Proposal 2, as currently written,
does not permit such a construction, we find that it is nonnegotiable
based on the court's decision in Cherry Point. For the reasons
expressed in conjunction with Proposal 1, we do not rule, in this case,
on the negotiability of any proposal that may be presented in the future
that is limited in scope to prescribing parking policies for employees
in the Union's bargaining unit and non-supervisory personnel who are not
represented in any bargaining unit.
In summary, we conclude that based on the court's decision in Cherry
Point, Proposals 1 and 2 are not within the duty to bargain. Because
neither proposal permits limitation of its terms to employees in the
Union's bargaining unit and non-unit, non-supervisory personnel, we do
not address "whether the 'vitally affects' test is satisfied with
respect to those persons . . . ." Cherry Point, 952 F.2d at 1443.
The petition for review is dismissed.
(1) In our earlier decision, we concluded that this subsection was
nonnegotiable because it was inconsistent with a Government-wide
regulation. Our decision as to this subsection was not appealed.
Therefore, the negotiability of this subsection is no longer at issue
before us.
(2) In its submissions, the Union used the designation "Marine Corps
Air Station" or "Air Station" to refer to the Cherry Point installation.
As noted in the earlier decision in this case, the Naval Aviation Depot
and the U.S. Naval Hospital are tenant activities of the Marine Corps
Air Station. 38 FLRA at 1453.
45 FLRA 1144
45 FLRA NO. 114
U.S. Dept. of Education and National Council of Dept. of Education
Locals, Council 252, AFGE, Local 2607 (Simpkins, Arbitrator), Case No.
0-AR-2222 (Decided September 8, 1992)
ARBITRATION EXCEPTIONS
REMAND
WORK SCHEDULES ACT
The Union filed a grievance protesting the Agency's changes in the
flexitime work schedules of five employees. The Arbitrator denied the
grievance, finding that the changes were made in accordance with the
parties' collective bargaining agreement and the Work Schedules Act.
The Authority remanded the award to the parties for resubmission to
the Arbitrator to determine whether the Agency's action in terminating
the grievants' work schedules was consistent with the Work Schedules
Act, including in particular 5 U.S.C. Section 6131(b).
Case No. 0-AR-2222
UNITED STATES DEPARTMENT OF EDUCATION
(Agency)
NATIONAL COUNCIL OF DEPARTMENT OF EDUCATION LOCALS, COUNCIL 252,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2607
(Union)
September 8, 1992
Before Chairman McKee and Members Talkin and Armendariz
This matter is before the Authority on exceptions to an award of
Arbitrator John Paul Simpkins filed by the Union under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. The Agency
filed an opposition to the Union's exceptions.
The Union filed a grievance protesting the Agency's changes in the
flexitime work schedules of five employees. The Arbitrator denied the
grievance, finding that the changes were made in accordance with the
parties' collective bargaining agreement and the Work Schedules Act.
/1/
For the following reasons, we conclude that the award must be
remanded to the parties for resubmission to the Arbitrator consistent
with this decision.
The five grievants are secretaries employed by the Agency. Before
July 13, 1989, the grievants' work schedules permitted them to
accumulate credit hours so that they worked 9 days in each 2-week
period. On July 13, 1989, the grievants' immediate supervisors
requested the grievants to change their work schedules so that they
would work 10 days in each 2-week period. The grievants filed
grievances alleging that the requests violated the parties' collective
bargaining agreement and Agency practice because the requests to change
the work schedules were not signed by the employees' second-level
supervisors. The requests were rescinded.
In August 1989, the employees received requests from their
second-line supervisors to change their work schedules so that they
would work 10 days in each 2-week period. The employees filed
individual grievances over the changes in their work schedules. The
employees' grievances set forth how the changed work schedules "would
create problems and/or hardships to them personally." Award at 3. The
grievances also "questioned (the Agency's) need to have (its)
secretaries change work schedules." Id.
The grievances were denied and, after being consolidated, were
submitted to arbitration. The issue before the Arbitrator, as
stipulated by the parties, was:
Did the (Agency) violate Article 35, Sections 35.01 and 35.06(b)
of the CBA (Collective Bargaining Agreement) by requiring the
grievants to change their flexitime schedules in August, 1989? If
so, what shall the remedy be?
Id. at 20-21. The Arbitrator noted the parties' stipulations that the
Agency's alternative work schedule system "is a flexible work schedule
as opposed to a 'compressed' work schedule as defined by" the Work
Schedules Act and that Article 35 (Flexitime) of the parties' agreement
"is consistent and in accordance with the provisions of" the Work
Schedules Act. Id. at 3, 4. Additionally, the Arbitrator noted that
the parties had asked him to "focus on" the parties' agreement,
"particularly Article 35, Sections 35.01 and 35.06(b)," and "to
consider" the Work Schedules Act, "specifically (s)ections 6122(a) and
(b) and 61(3)0(a)(1) and (2)(.)" Id. at 4, 5. /2/
Before the Arbitrator, the Union contended that the Agency had
violated the parties' agreement and applicable law because the Agency
had issued an Agency-wide schedule change and had "failed to demonstrate
any work-related reason for implementing the changes" in the grievants'
work schedules. Id. at 7. The Union argued that the grievants had
shown that the changes "would significantly impact upon (the grievants)
by raising commuting costs, child care costs, work-related expenses and
travel time" (id. at 8), and the Union had "shown by extensive evidence"
that the Agency had "no 'business related' reason based upon work
requirements for the changes" (id. at 11).
The Agency contended before the Arbitrator that the Union failed to
demonstrate that the Agency's actions violated law or the parties'
agreement. The Agency asserted that under the Work Schedules Act, it
had the authority to change alternative work schedules if those
schedules proved disruptive or too costly to the Agency. The Agency
acknowledged that it was required to specify the work requirements that
formed the basis for its decision to change work schedules and to give
consideration to the hardship the decision would cause the employees.
The Agency argued, however, that neither the law nor Article 35 of the
agreement set a standard for the reasons or required a balancing between
the needs of the Agency and the employees. The Agency urged the
Arbitrator to reject the Union's attempt "to establish that the 'just
and sufficient cause' standard, applicable under Article 36 (of the
agreement,) should apply" to the grievances because Article 36 deals
only with disciplinary matters and does not apply to matters covered by
Article 35 of the agreement. Id. at 17. In sum, the Agency contended
that the Agency had met the requirements of the agreement in making its
decision to change the grievants' work schedules.
The Arbitrator concluded that the Agency did not violate Article 35,
Sections 35.01 and 35.06(b). The Arbitrator found that Article 35 of
the agreement drew its essence from, and complied with, the Work
Schedules Act and is binding on the parties. The Arbitrator rejected
the Union's "argument that because hardships were pleaded by the (g)
rievants, these grievances should be sustained." Id. at 21. The
Arbitrator found that "(i)t is, or should be obvious, from (the language
of Article 35) that the final determination concerning a supervisor's
initiated change in an employee's established working schedule shall be
that of the (Agency) -- not the employee or the Union." Id. at 22.
The Arbitrator also rejected the Union's arguments that the
Arbitrator should apply a "just and sufficient cause" standard and
should sustain the grievances because the Agency had given only "flimsy
and unsubstantiated work-related reasons" for the changes in work
schedules. Id. The Arbitrator found that, although "the (Agency's)
evidence of how, precisely, these (work) schedules adversely affected
the administration and operations was not the strongest, the fact
remains that the (Agency) is not obligated to show 'just and sufficient
cause', and, in fact, has no burden of proof to substantiate its work
requirements under the law or the (c)ontract." Id. The Arbitrator
stated that it was "apparent from the evidence that there were
work-related problems within" the Agency that the Agency "sought to
correct by instituting maximum staff coverage" by making the work
schedule changes. Id. at 22-23. The Arbitrator concluded that "(t)he
(Agency's) actions, therefore, met the requirements of Section 35.06(
b)." Id. at 23.
The Arbitrator noted that the Union "raised the argument" that, by
"deny(ing) access to flexitime on an across-the-board basis," the Agency
had "violated the spirit and intent of the (f)lexitime provision" of the
parties' agreement. Id. The Arbitrator found that the fact that the
Agency had eliminated flexitime for professional employees "nullif(ied)
the Union's allegations of discrimination against" bargaining unit
employees and "support(ed) the (Agency's) position that it has indeed
made changes in work schedules across the board to fill work
requirements perceived by (m)anagement." Id.
Accordingly, "(b)ased upon the (a)greement" the Arbitrator concluded
that he had "no choice but to deny the consolidated grievances in this
matter." Id.
A. Union's Exceptions
The Union contends that the award violates the Work Schedules Act.
In particular, the Union asserts that the Arbitrator's "statement that
the (Agency) has no burden of proof to substantiate its work requirement
under the law or the (parties' agreement) is contrary to the provisions
of (the Work Schedules Act), Section 6131(a) and (b), the legislative
history and all rulings on such matters." Exceptions at 5.
The Union contends that even though it cited section 6131 of the Work
Schedules Act to the Arbitrator, the Arbitrator ignored this provision.
According to the Union, section 6131 requires that before discontinuing
a flexible work schedule, an agency must make a finding that the work
schedule "has had an adverse agency impact" and "must show from its
findings how the agency has been adversely impacted . . . ." Id.
(emphasis in original). The Union argues that the Arbitrator
acknowledged that "the (Agency's) evidence of how, precisely, these
(work) schedules adversely affected the (Agency's) administration and
operations was not the strongest." Id. In the Union's view, the Agency
presented "only assertions by various supervisors that there was a lack
of coverage (of certain work assignments) on occasions," but that "(t)
here was no evidence submitted to show adverse impact on the operations
of the (Agency)." Id. at 7-8.
The Union also argues that because the Agency "took all of the
bargaining unit employees, support staff and professional staff, off of
flexitime/compressed time, the (Agency) was obligated" under section
6131(c)(3)(A) of the Work Schedules Act to reopen the parties'
agreement, and by failing to do so the Agency "failed to initiate
bargaining on the proposed change as required by law." Id. at 8.
B. Agency's Opposition
The Agency contends that the Union's exceptions should be denied
because: (1) the award is not contrary to law, rule, or regulation;
(2) the exceptions are based on the Union's misinterpretation of the
Work Schedules Act; and (3) the exceptions essentially constitute only
disagreement with the findings and reasoning of the Arbitrator in
interpreting the parties' agreement.
The Agency asserts that the Union is incorrect in arguing that the
Arbitrator was required to apply section 6131(a) and (b) of the Work
Schedules Act in determining whether to uphold the Agency's decision to
change the grievants' work schedules. According to the Agency, section
6131(a) and (b) applies only to the negotiation process and the role of
the Federal Service Impasses Panel (the Panel) in resolving negotiation
impasses over whether an agency may decline to negotiate over, or may
terminate existing, alternate work schedule (AWS) programs. The Agency
asserts that this provision "does not at all concern grievance
arbitration over the administration of the collective bargaining
agreement AWS provisions." Opposition at 1-2. Thus, the Agency contends
that the standard of proof that the Panel is directed to apply by
section 6131 "is inapplicable to the arbitration of a contract
administration grievance such as this." Id. at 2. Moreover, the Agency
argues that the Union's argument that the Agency was required to seek to
negotiate the employee schedule changes that were the subject of this
grievance constitutes an unfair labor practice allegation that "was
never raised in the grievance or before the (A)rbitrator, and may not
now be raised in this exception." Id.
The Agency states that section 6122(a) of the Work Schedules Act
provides that "the election of a flexible schedule by any employee
'shall be subject to limitations generally prescribed to ensure the
duties and requirements of the employee's position are fulfilled.'" Id.,
quoting 5 U.S.C. Section 6122(a). The Agency contends that the parties'
agreement "sets forth terms and conditions whereby the Agency may change
the work schedule of an employee" and "provides for procedures to
accomplish this change." Id. The Agency asserts that the Union has
misinterpreted the parties' agreement as establishing a standard that
"employees have a 'right' to the schedule that they wish and the Agency
must establish there is 'just and sufficient cause' to change any
schedule." Id. The Agency contends that the Arbitrator properly found
that there was no such right in law or the parties' agreement.
For the reasons discussed below, we will remand the award to the
parties for resubmission to the Arbitrator for action consistent with
this decision.
The Authority has held that "(u)nder 5 U.S.C. Section 6130(a)(1), the
termination of alternate work schedules for employees covered by a
collective bargaining agreement providing for the use of such work
schedules must be in accordance with 5 U.S.C. Section 6131." U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina
and American Federation of Government Employees, Local 3347, 43 FLRA 87,
93 (1991) (EPA) (the Authority found that an arbitrator's award
directing the agency to bargain over a change in a grievant's work
schedule, and to restore the grievant's original work schedule until the
matter was settled by the parties or by the Panel, was consistent with 5
U.S.C. Section 6131). Under 5 U.S.C. Section 6131(a), an agency may
terminate an alternate work schedule established under a collective
bargaining agreement only upon finding that the work schedule has had or
would have an "adverse agency impact." Under 5 U.S.C. Section 6131( b),
to determine that an adverse impact has occurred, an agency must find:
(1) a reduction in the productivity of the agency; (2) a diminished
level of services furnished to the public by the agency; or (3) an
increase in the cost of agency operations (other than a reasonable
administrative cost relating to the process of establishing a flexible
or compressed schedule).
The Arbitrator found that it was "apparent from the evidence that
there were work-related problems within" the Agency that the Agency
sought to correct by making the work schedule changes. Award at 22.
The Arbitrator also found that, although "the (Agency's) evidence of
how, precisely, these (work) schedules adversely affected the
administration and operations was not the strongest," the Agency "has no
burden of proof to substantiate its work requirements under the law or
the (c)ontract." Id.
The Arbitrator was in error in finding that the Agency has no burden
of proof under the law. As we noted above, 5 U.S.C. Section 6131(a) and
(b) require that whenever an agency terminates an alternate work
schedule established under a collective bargaining agreement, the agency
must find an adverse agency impact. There is nothing in the record
which establishes that the Arbitrator considered and applied the
standards of 5 U.S.C. Section 6131(b) in reaching his decision. Indeed,
the Arbitrator does not even mention those standards in making his
findings. We find that, in order to determine whether the Agency
satisfied its obligation of finding an "adverse agency impact" under 5
U.S.C. Section 6131(b), the Arbitrator must consider and apply those
standards. Accordingly, we will remand the award to the parties for
resubmission to the Arbitrator to determine whether the Agency's action
in terminating the grievants' work schedules was consistent with the
Work Schedules Act, including in particular 5 U.S.C. Section 6131(b).
In view of our decision, we find it unnecessary to pass upon the Union's
other exceptions.
The award is remanded to the parties for further proceedings
consistent with this decision.
(1) Federal Employees Flexible and Compressed Work Schedules Act of
1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. Sections
3401, 6101 and note, 6106, 6120-6133), which was made permanent in Pub.
L. No. 99-196, 99 Stat. 1350 (1986).
(2) Relevant provisions of the parties' agreement and the Work
Schedules Act are set forth in the Appendix to this decision.
Article 35 (entitled "Flexitime"), Sections 35.01 and 35.06(b) of the
parties' agreement, provide:
Section 35.01
The Employer and the Union agree that flexible work scheduling can
enhance the efficiency and the effectiveness with which the Employer and
its employees fulfill the obligations of public service. The Parties
also agree that employee participation in the setting of their
individual work schedules consistent with work requirements can
contribute to the improvement of employee morale, work performance, and
productivity. These mutual benefits are contingent upon a shared sense
of accountability and responsibility for the effective implementation
and consistent administration of the following flexible work scheduling
provisions according to their intent and their purpose. The Parties
agree therefore, that these provisions shall apply to all bargaining
unit employees and shall be administered and implemented consistently
according to its terms and conditions.
Section 35.06 Changes in Schedules.
(b) Supervisor Initiated. A supervisor may change an employee's
established work schedule by providing the employee with written notice
no less than two (2) weeks before the effective date of the change.
Reasons for the change must be specified and based upon work
requirements. The written notice of change must be signed by the
employee's second-level supervisor. If the employee believes that the
change will cause a hardship, and after discussing this with his/her
supervisor, the employee may request reconsideration in writing on ED
Form LMR-1 by his/her second-level supervisor within three (3) work days
following his/her receipt of the written notice for change. The
second-level supervisor must respond within two (2) work days from
receipt of the Form LMR-1. The decision will be considered a second(-)
stage decision in the case of appeal to the Collective Bargaining
Official. The employee will remain on the previously established
schedule until the grievance is resolved or until the step 3 decision is
issued, whichever is sooner.
5 U.S.C. Sections 6122(a) and (b), 6130(a)(1) and (2), 6131(a) and
(b), and 6131(c)(3)(A) provide:
Section 6122. Flexible schedules; agencies authorized to use
(a) Notwithstanding Section 6101 of this title, each agency may
established, in accordance with this subchapter, programs which
allow the use of flexible schedules which include --
(1) designated hours and days during which an employee on such
a schedule must be present for work; and
(2) designated hours during which an employee on such a
schedule may elect the time of such employee's arrival at and
departure from work, solely for such purpose or, if and to the
extent permitted, for the purpose of accumulating credit hours to
reduce the length of the workweek or another workday.
An election by an employee referred to in paragraph (2) shall be
subject to limitations generally prescribed to ensure that the duties
and requirements of the employee's position are fulfilled.
(b) Notwithstanding any other provision of this subchapter, but
subject to the terms of any written agreement referred to in
section 6130(a) of this title, if the head of an agency determines
that any organization within the agency which is participating in
a program, under subsection (a) is being substantially disrupted
in carrying out its functions or is incurring additional costs
because of such participation, such agency head may --
(1) restrict the employees' choice of arrival and departure
time,
(2) restrict the use of credit hours, or
(3) exclude from such program any employee or group of
employees.
Section 6130. Application of programs in the case of collective
bargaining agreements
(a)(1) In the case of employees in a unit represented by an
exclusive representative, any flexible or compressed work
schedule, and the establishment and termination of any such
schedule, shall be subject to the provisions of this subchapter
and the terms of a collective bargaining agreement between the
agency and the exclusive representative.
(2) Employees within a unit represented by an exclusive
representative shall not be included within any program under this
subchapter except to the extent expressly provided under a
collective bargaining agreement between the agency and the
exclusive representative.
Section 6131. Criteria and review
(a) Notwithstanding the preceding provisions of this subchapter
or any collective bargaining agreement and subject to subsection
(c) of this section, if the head of an agency finds that a
particular flexible or compressed schedule under this subchapter
has had or would have an adverse agency impact, the agency shall
promptly determine not to --
(1) establish such schedule; or
(2) continue such schedule, if the schedule has already been
established.
(b) For purposes of this section, "adverse agency impact" means
--
(1) a reduction of the productivity of the agency;
(2) a diminished level of services furnished to the public by
the agency; or
(3) an increase in the cost of agency operations (other than a
reasonable administrative cost relating to the process of
establishing a flexible or compressed schedule).
(c)(3)(A) If an agency and an exclusive representative have
entered into a collective bargaining agreement providing for use
of a flexible or compressed schedule under this subchapter and the
head of the agency determines under subsection (a)(2) to terminate
a flexible or compressed schedule, the agency may reopen the
agreement to seek termination of the schedule involved.
45 FLRA 1139
45 FLRA NO. 113
U.S. Dept. of the Air Force, Tinker Air Force Base, Oklahoma and
AFGE, Local 916 (Barron, Arbitrator), Case No. 0-AR-2263 (Decided
September 8, 1992)
7122(a)
ARBITRATION EXCEPTIONS
ARBITRATOR EXCEEDED AUTHORITY
ESSENCE
AWARD CONTRARY TO LAW OR REGULATION
AWARD CONTRARY TO PREVIOUS AWARDS
An employee filed a grievance challenging the Agency's failure to
promote him. The Arbitrator partially sustained the grievance and, as a
remedy, ordered the Agency to pay the grievant the difference between a
WG-8 and WG-9 Testing Equipment Operator for a certain period of time.
The Authority concluded that the Union's exceptions provided no basis
for finding the award deficient and denied the exceptions.
The Authority rejected the Union's contention that the Arbitrator
exceeded his authority. The Authority also rejected the Union's claim
that the award was contrary to law or regulation. The Authority found
that the Union failed to cite any provision of law with which the award
conflicted and none was apparent to the Authority. The Authority noted
that an unsupported contention that an award is contrary to law provides
no basis for finding an award deficient. The Authority also rejected
the Union's contention that the award violated regulation.
The Authority construed the Union's allegation that the Arbitrator's
award violated the parties' collective bargaining agreement as a
contention that the award failed to draw its essence from the parties'
agreement. The Authority rejected this argument as well, noting that it
was mere disagreement with the Arbitrator's interpretation and
application of the parties' agreement. Finally, the Authority concluded
that the contention that the award conflicted with other arbitration
awards provided no basis for finding an award deficient under the
Statute.
Case No. 0-AR-2263
U.S. DEPARTMENT OF THE AIR FORCE, TINKER AIR FORCE BASE, OKLAHOMA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916
(Union)
September 8, 1992
Before Chairman McKee and Members Talkin and Armendariz
This case is before the Authority on exceptions to an award of
Arbitrator Paul Barron filed by the Union under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Agency did not
file an opposition to the Union's exceptions.
An employee filed a grievance challenging the Agency's failure to
promote him. The Arbitrator partially sustained the grievance and, as a
remedy, ordered the Agency to pay the grievant the difference between a
WG-8 and WG-9 Testing Equipment Operator for a certain period of time.
For the following reasons, we conclude that the Union's exceptions
provide no basis for finding the award deficient. Accordingly, we will
deny the exceptions.
The grievance in this case is one of a series that have come before
the Authority on exceptions to arbitration awards, issued by different
arbitrators, naming as parties the same Agency and Union that are named
in this case. The grievances concern the Agency's failure to promote
various wage grade employees who participated in, or were affected by,
the Agency's implementation of its vocational technical (Vo-Tech)
training program. See, Air Logistics Center, Tinker Air Force Base,
Oklahoma and American Federation of Government Employees, Local 916, 43
FLRA 399 (1991).
The grievant, a WG-8 employee, filed a grievance claiming that he
should have been promoted to the WG-9 level. When the grievance was not
resolved, it was submitted to arbitration. The Arbitrator framed the
issues as follows:
1. Is the grievance properly before the arbitrator from a
substantive basis?
2. Was the grievance filed in a timely fashion and, therefore,
properly before the arbitrator from a procedural basis?
3. Did the Agency process the grievance in an appropriate and
timely fashion?
4. If the substantive grievance is properly before the
arbitrator, is the Agency's action, as to the Grievant, of denying
promotion from WG-8, in violation of laws or regulations, or the
Master Labor Agreement? If so, what shall the remedy be?
Award at 1.
As relevant here, the Arbitrator determined the grievance was
properly before him. On the merits, the Arbitrator determined that the
Agency violated Article 13, Section 13.01 /1/ of the parties' collective
bargaining agreement by failing to temporarily promote the grievant.
The Arbitrator decided, however, that consistent with the time limits in
the parties' negotiated grievance procedures, the grievant's "claim must
be limited to the period beginning 21 days prior to the (initial)
grievance" /2/ because, the grievant should have known at that time
"that he was consistently doing WG-9 work and, as such, was entitled to
WG-9 pay. . . ." Id. at 25.
The Union contends that the award is deficient because it "exceeded
the Arbitrator's authority; ignored and violated laws, regulations,
(and) the (collective bargaining agreement) between the Parties;
contained an inconsistency between the Arbitrator's findings and
conclusion; and was not in accordance with the prevailing arbitral
views." Exceptions at 2. Specifically, the Union contends that the
Arbitrator "found and testimony, evidence, (and) other arbitrators
awards supported that the (g)rievant performed WG-9 work from his
certification date of January 1986, thru March 1990." Id. The Union
asserts that the Arbitrator erred by limiting the grievant's backpay to
a period beginning 21 days prior to the date on which the grievance was
filed.
A. The Arbitrator Did Not Exceed His Authority
An arbitrator exceeds his or her authority when, among other things,
the arbitrator resolves an issue not submitted to arbitration, or awards
relief to persons who are not encompassed within the grievance. U.S.
Small Business Administration, Washington, D.C. and American Federation
of Government Employees, Local 2532, 42 FLRA 890, 897-98 (1991). As the
Union does not contend that the Arbitrator either resolved an issue not
before him or granted relief to anyone who was not a party to the
grievance, we reject the Union's contention that the Arbitrator exceeded
his authority.
B. The Award Is Not Contrary to Law or Regulation
We reject the Union's contention that the Arbitrator's award violates
law. The Union has cited no provision of law with which the award
conflicts and none is apparent to us. An unsupported contention that an
award is contrary to law provides no basis for finding an award
deficient. See, for example, U.S. Department of the Air Force, Oklahoma
City Air Logistics Center, Tinker Air Force Base, Oklahoma and American
Federation of Government Employees, Local 916, 44 FLRA 527, 530 (1992).
We also reject the Union's contention that the award violates
regulation. First, as to Air Force Regulation 40-321, which sets forth
the procedures for detailing employees, the Union has cited no portion
of the regulation with which the award conflicts and no such conflict is
apparent to us. Instead, the Union's exception constitutes mere
disagreement with the Arbitrator's findings of fact and conclusions
based thereon that, the grievant's claim was limited by the time limits
in the parties' negotiated grievance procedure. As such, the exceptions
provides no basis for finding the award deficient. See, for example,
U.S. Department of the Air Force, Langley Air Force Base, Hampton,
Virginia and National Association of Government Employees, Local R4-106,
41 FLRA 246, 249 (1991). Further, with respect to the Union's assertion
that the Arbitrator's award violates Air Force Regulation 40-335, the
Union did not provide us with a copy of that regulation or the portion
thereof with which the award allegedly conflicts. Accordingly, the
Union has not established that the award conflicts with this regulation.
We note, in this regard, that section 2425.2(d) of the Authority's
Rules and Regulations requires that an exception be a "self-contained"
document that includes copies of "pertinent documents."
C. The Award Draws Its Essence From the Parties' Collective
Bargaining Agreement
We construe the Union's allegation that the Arbitrator's award
violates the parties' collective bargaining agreement as a contention
that the award fails to draw its essence from the parties' agreement.
To demonstrate that an award is deficient on this ground, a party must
show that the award: (1) cannot in any rational way be derived from the
agreement; or (2) is so unfounded in reason and fact, and so
unconnected with the wording and the purpose of the agreement as to
manifest an infidelity to the obligation of the arbitrator; or (3)
evidences a manifest disregard for the agreement; or (4) does not
represent a plausible interpretation of the agreement. For example, U.
S. Department of the Air Force, Oklahoma City Air Logistics Center,
Tinker Air Force Base, Oklahoma and American Federation of Government
Employees, Local 916, 44 FLRA 283, 286 (1992) (Oklahoma City ALC).
The Arbitrator concluded, based on his interpretation and application
of Article 6, Section 6.07a of the parties' agreement as it related to
Section 13.01, that the grievant's "claim must be limited to the period
beginning 21 days prior to the grievance." Award at 25. Nothing in the
Arbitrator's interpretation of the agreement is irrational, implausible,
or in manifest disregard of the agreement. In our view, the Union's
argument that the award violates the parties' agreement, as well as its
assertion that the award "contained an inconsistency between the
Arbitrator's findings and conclusion," constitute mere disagreement with
the Arbitrator's interpretation and application of the parties'
agreement. Exceptions at 2. Such disagreement provides no basis for
finding the award deficient. For example, Oklahoma City ALC, 44 FLRA at
286.
Finally, a contention that an award conflicts with other arbitration
awards provides no basis for finding an award deficient under the
Statute. See, for example, U.S. Department of Transportation, Federal
Aviation Administration, Springfield, Illinois and National Air Traffic
Controllers Association, 39 FLRA 1036, 1043 (1991). Accordingly, we
reject the Union's contention that the award is deficient because the
Arbitrator did not follow "prevailing arbitral views." Exceptions at 2.
The Union's exceptions are denied.
(1) Article 13, Section 13.01 states:
When an employee is temporarily assigned to a higher graded
position or the grade-controlling duties of a higher graded
position for 30 consecutive calendar days, the employee shall be
temporarily promoted into and receive the rate of pay of that
position on the 31st day. The employee must be qualified to fill
the position on a permanent basis.
Award at 23.
(2) Article 6, Section 6.07a requires, in pertinent part, that "a
dispute be raised informally with the first level supervisor 'within
twenty-one (21) calendar days of the date of the management action or
occurrence giving rise to the grievance or reasonable awareness of such
action or occurrence.'" Award at 17.
45 FLRA 1132
45 FLRA NO. 112
NFFE, Local 1482 and U.S. Dept. of Defense, Defense Mapping Agency,
Louisville, Kentucky, Case No. 0-NG-1780 (39 FLRA 1169) (Decided
September 4, 1992)
NEGOTIABILITY DETERMINATION
REMAND
CONDITIONS OF EMPLOYMENT
"VITALLY AFFECTS" TEST
This case came before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit in
United States Department of Defense, Defense Mapping Agency, Louisville,
Kentucky v. FLRA, No. 91-1217 (D.C. Cir. Feb. 28, 1992) (Defense Mapping
Agency v. FLRA). The court vacated the Authority's decision and order
to the extent that the Authority held that Proposal 2 was negotiable.
The court remanded the case for further proceedings consistent with the
court's decision in United States Department of the Navy, Naval Aviation
Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir.
1992) (Cherry Point). On remand, the Authority concluded that Proposal
2 was negotiable.
The Authority found, on remand, that Proposal 2 did not seek to
regulate the conditions of employment of supervisory personnel, but was
principally related to the conditions of employment of unit employees
and, consequently, was negotiable.
Case No. 0-NG-1780, (39 FLRA 1169 (1991))
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1482
(Union)
U.S. DEPARTMENT OF DEFENSE, DEFENSE MAPPING AGENCY, LOUISVILLE,
KENTUCKY
(Agency)
September 4, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit in
United States Department of Defense, Defense Mapping Agency, Louisville,
Kentucky v. FLRA, No. 91-1217 (D.C. Cir. Feb. 28, 1992) (Defense Mapping
Agency v. FLRA). The court vacated our decision and order to the extent
that we held that Proposal 2 was negotiable. The court remanded the
case for further proceedings consistent with the court's decision in
United States Department of the Navy, Naval Aviation Depot, Cherry
Point, North Carolina v. FLRA, 952 F.2d 1434 (D. C. Cir. 1992) (Cherry
Point). On remand, we conclude that Proposal 2 is negotiable.
A. Proposal 2
53-1 Supervisory Backups
The following procedure will be followed in assigning backups
to the supervisor in his/her absence:
The supervisor will ask each of the employees they directly
supervise if they wish to be a supervisory backup. The supervisor
will compile a list indicating the employees interested in serving
as a backup. The list of backups will be posted in the work area
so that any employee wishing to follow the chain of command can
contact the correct person.
A supervisor will give written objective job(-)related reasons
for not assigning an employee as his/her backup. This
documentation will be made available to the Union for review upon
request. The documentation will be locally maintained for a
period of one (1) year.
B. Authority Decision and Order
In National Federation of Federal Employees, Local 1482 and U.S.
Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39
FLRA 1169, 1183-91 (1991) (Defense Mapping Agency), we found that
Proposal 2, concerning the selection of unit employees to serve as
supervisory backups, was negotiable. Specifically, we found that the
proposal concerned the conditions under which unit employees would be
assigned supervisory duties in addition to the regular duties of their
positions. We also found that the proposal did not concern the detail
of a unit employee to a supervisory position.
We concluded that, although the proposal concerns the work of nonunit
positions, the proposal vitally affects the conditions of employment of
unit employees and, therefore, unless otherwise precluded, was within
the duty to bargain under the Statute. We also concluded that the
proposal did not directly interfere with management's rights, under
section 7106(a)(2) of the Statute, to assign employees or assign work
or, under section 7106(b)(1), to determine the types of employees
assigned to an organizational subdivision, work project, or tour of
duty. Consequently, we found that the proposal was a negotiable
procedure under section 7106(b)(2) of the Statute.
The Agency sought review in the United States Court of Appeals for
the District of Columbia Circuit of our conclusion that Proposal 2
vitally affects the conditions of employment of unit employees. During
the pendency of that appeal, the court issued its decision in Cherry
Point. Because the issues on appeal in this case were related to the
issues in Cherry Point, the court remanded this case to us for
consideration in light of its holdings in Cherry Point. Both parties
have filed briefs addressing, on remand, the application of the court's
decision in Cherry Point to the proposal at issue in this case.
A. Agency
The Agency notes that, under the court's opinion in Cherry Point, the
vitally affects test has "no application" to proposals that attempt "to
regulate() the conditions of employment of supervisory personnel . . .
." Agency's Brief on Remand at 6. Consequently, the Agency argues, a
proposal that directly implicates the conditions of employment of
supervisory personnel "can never become a mandatory subject of
bargaining." Id.
The Agency asserts that "Authority precedent has long established
that the procedures which management must follow in filling supervisory
positions, including temporary ones, are not matters affecting
conditions of employment of unit employees and are negotiable only at
the election of the (a)gency." Id. at 10. The Agency claims that "the
same principle" applies to this case. Id. at 11.
According to the Agency, "(b)argaining unit positions and supervisory
responsibilities are incompatible insofar as management's duty to
bargain is concerned." Id. The Agency states that, under the disputed
proposal, employees "technically" remain in the bargaining unit and
continue to perform "some of the usual daily tasks" of their bargaining
unit positions, while at the same time assuming supervisory
responsibilities. Id. The Agency claims that the proposal is "intended
to regulate that aspect of the dual position which involves the
supervisory responsibilities." Id. at 11-12. The Agency maintains that
although the proposal might directly affect unit members, its "focus" is
"on regulating how management chooses who is to perform in a supervisory
role." Id. at 11 n.11 (emphasis in original) (citing First National
Maintenance Corp. v. NLRB, 452 U.S. 666, 667 (1981)).
The Agency argues that any actions taken by an employee in the role
of acting supervisor are matters outside the scope of the collective
bargaining relationship. The Agency maintains that the bargaining
obligation extends only to matters that settle an aspect of the
relationship between bargaining unit employees and the employer. The
Agency contends that the disputed proposal attempts to regulate the
selection of persons to assume supervisory responsibilities and that the
proposal, therefore, does not concern an aspect of the relationship
between the Agency and unit employees, even if the person selected
remains in the unit "for some purposes." Id. at 13. According to the
Agency, a person performing in the role of acting supervisor lacks the
"community of interest" with bargaining unit employees required for
inclusion in the bargaining unit. Id.
B. Union
The Union contends that the disputed proposal "involves communication
(and) procedure." Union's Brief on Remand at 1. The Union notes that
the "supervisory backup" referenced in the proposal is not a detail or a
temporary promotion and does not require any form of personnel action.
Id. The Union claims that being selected as a supervisory backup
enhances employees' promotion potential. The Union also claims that
management does not want to explain its selections for supervisory
backup because its "actual reasons" include "various types of prohibited
actions" and "protected activities." Id. According to the Union, the
Authority precedent cited by the Agency concerns "personnel actions" and
is not relevant to this case. Id.
For the following reasons, we find that Proposal 2 does not seek to
regulate the conditions of employment of supervisory personnel, but
principally relates to the conditions of employment of unit employees
and, consequently, is negotiable.
In Cherry Point, the court approved the Authority's adoption of the
vitally affects test used in the private sector, but found that the
Authority had misapplied that test in certain circumstances. According
to the court, the vitally affects test is appropriately used "to define
the limited circumstances in which subjects not normally seen to be
within the compass of mandatory bargaining -- e.g., the terms of a
relationship between the employer and a third party -- may become
mandatory subjects due to their effect on bargaining unit employees."
Cherry Point, 952 F.2d at 1440. As the court stated in Cherry Point,
"(m)andatory subjects are those that principally relate to the
conditions of employment of bargaining unit employees." Id. at 1439.
In discussing the application of the vitally affects test, the court
differentiated among four groups of personnel that might be affected by
a proposal: (1) employees not in any bargaining unit; (2)
nonemployees; (3) management and supervisory personnel; and (4)
employees in other bargaining units. As relevant here, the court held
that the vitally affects test does not apply in circumstances where a
union seeks to regulate conditions of employment of supervisory and
management personnel who are excluded by the Statute from bargaining
units. Id. at 1441. The court noted that, pursuant to section 7112 of
the Statute, supervisors and managers "are legally disabled from
belonging to any bargaining unit(.)" Id. at 1442. The court concluded,
therefore, that permitting a union to seek to negotiate to regulate the
conditions of employment of supervisors and other management personnel
would "violate the fundamental principle that a union is the exclusive
representative of employees in the certified or recognized unit, and
those employees only." Id. (emphasis in original) (citing National
Council of Field Labor Locals, American Federation of Government
Employees, AFL-CIO and U.S. Department of Labor, Washington, D.C., 3
FLRA 290, 292 (1980) (Department of Labor) (Authority held nonnegotiable
a proposal specifying procedures for filling management and supervisory
positions)). See American Federation of Government Employees, Local
1923 and U.S. Department of Health and Human Services, Health Care
Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1422-23
(1992).
Stated in terms of the principles set forth by the court in Cherry
Point, the issue in this case on remand is whether Proposal 2 seeks to
regulate the conditions of employment of supervisory personnel or
whether the proposal principally relates to the conditions of employment
of unit employees. Cherry Point, 952 F.2d at 1441-42.
Proposal 2 establishes a procedure governing the assignment of
supervisory duties temporarily to unit employees. The proposal does not
require management to use unit employees as backups for absent
supervisors, but only takes effect when management has decided that a
unit employee will fill in for a short period of time for the
supervisor. Consequently, the intent of the proposal is not to regulate
the conditions of employment of supervisory personnel, but to determine
the manner in which unit employees will be assigned as supervisory
backup. Accordingly, we find that the proposal principally relates to
the conditions of employment of unit employees. See Cherry Point, 952
F.2d at 1439. See also National Weather Service Employees Organization
and U.S. Department of Commerce, National Oceanic and Atmospheric
Administration, National Weather Service, Silver Spring, Maryland, 44
FLRA 18, 28 (1992).
Proposal 2 is distinguishable from Proposal 1 in National Federation
of Federal Employees, Local 1482 and U.S. Department of Defense, Defense
Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky,
45 FLRA 640 (1992). In that case, we found, applying Cherry Point, that
the proposal, which required specific training for supervisors, sought
to regulate the conditions of employment of supervisors. Consequently,
we concluded that the proposal did not concern the conditions of
employment of unit employees. Proposal 2, in contrast, does not
establish job requirements for supervisory personnel, but, rather,
establishes the procedures to be followed when management decides to
assign supervisory duties temporarily to unit employees. The purpose of
the proposal is to determine the manner in which unit employees will be
assigned those duties and, thus, the proposal principally relates to the
conditions of employment of unit employees.
We also find, for similar reasons, that Proposal 2 is distinguishable
from the proposal at issue in Department of Labor. The proposal in
Department of Labor prescribed the conditions governing the permanent
filling of a supervisory position outside the unit with a unit employee.
On the other hand, Proposal 2 prescribes the conditions governing the
temporary assignment of supervisory duties to an employee in the unit
and, therefore, principally relates to the conditions of employment of
unit employees. We note that when a unit employee is permanently or
temporarily assigned to a supervisory position, that employee is not
included in the unit during the period of the assignment. See for
example, National Federation of Federal Employees, Local 1442 and U.S.
Department of the Army, Letterkenny Army Depot, Chambersburg,
Pennsylvania, 44 FLRA 723, 726-27 (1992).
However, we reject the Agency's assertion that, under Proposal 2,
although the unit employee to whom supervisory duties are temporarily
assigned "technically" remains in the unit, the employee is outside the
unit "for some purposes." Statement of Position at 11 and 13. The
Agency provides no support for its contention that a unit employee who
temporarily performs some supervisory backup duties under Proposal 2
would be required to be removed from the unit.
Accordingly, we find that the intent and the effect of the proposal
in Department of Labor is entirely different from the intent and the
effect of Proposal 2 in this case. Consequently, we find that Proposal
2 is distinguishable from Department of Labor.
For the foregoing reasons, we find, under Cherry Point, that Proposal
2 principally relates to the conditions of employment of unit employees,
rather than purporting to regulate the conditions of employment of
supervisory personnel. Because we found in Defense Mapping Agency that
Proposal 2 does not directly interfere with management's rights, under
section 7106(a)(2)(B), to assign work and, under section 7106(b)(1), to
determine the types of employees assigned to an organizational
subdivision, work project, or tour of duty, we conclude that the
proposal is negotiable.
The Agency shall upon request, or as otherwise agreed to by the
parties, bargain on Proposal 2. /*/
(*) In finding the proposal negotiable, we make no judgment as to its
merits.
45 FLRA 1121
45 FLRA NO. 111
NFFE, Local 1214 and U.S. Dept. of the Army Headquarters, U.S.
Training Center and Fort Jackson, South Carolina, Case No. 0-NG-2024
(Decided September 4, 1992)
7106(a)(1)
7106(b)(3)
7106(a)(2)(B)
NEGOTIABILITY DETERMINATION
INTERNAL SECURITY PRACTICES
APPROPRIATE ARRANGEMENTS
RIGHT TO ASSIGN WORK
This case concerned the negotiability of two proposals relating to
bargaining unit firefighters in the Agency's Fire Prevention and
Protection Division.
Proposal 1 required the Agency to allow firefighters to eat their
meals at base dining facilities that are outside of the fire station and
to use the Agency's response vehicles for transportation to those
facilities. Proposal 2 provided that firefighters should not be
assigned duties unrelated to their position or regular field of work.
The Authority found both proposals to be nonnegotiable.
The Authority found that Proposal 1 directly and excessively
interfered with management's right to determine its internal security
practices under section 7106(a)(1) of the Statute and concluded,
therefore, that the proposal was nonnegotiable. The Authority also
concluded that Proposal 1 did not constitute an appropriate arrangement
within the meaning of section 7106(b)(3) of the Statute.
The Authority found that Proposal 2 directly and excessively
interfered with management's right to assign work and concluded,
therefore, that the proposal is nonnegotiable. The Authority noted that
proposals that restrict an agency's ability to assign particular duties
to employees directly interfere with management's right to assign work
under section 7106(a)(2)(B).
However, the Authority found that Proposal 2 constituted an
arrangement within the meaning of section 7106(b)(3) of the Statute.
The Authority noted that the record established that, although Proposal
2 would benefit employees by restricting management's ability to assign
unrelated duties to the firefighters, the record did not establish that
such a benefit would be so significant as to outweigh the burden of the
broadly worded limitation placed on management. Therefore, the
Authority concluded that the proposal excessively interfered with
management's right to assign work under section 7106(a)(2)(B) of the
Statute.
Case No. 0-NG-2024
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1214
(Union)
U.S. DEPARTMENT OF THE ARMY, HEADQUARTERS, U.S. ARMY TRAINING CENTER
AND FORT JACKSON, FORT JACKSON, SOUTH CAROLINA
(Agency)
September 4, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on a negotiability appeal filed
under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute) and concerns the negotiability of two
proposals relating to bargaining unit firefighters in the Agency's Fire
Prevention and Protection Division. /*/
Proposal 1 would require the Agency to allow firefighters to eat
their meals at base dining facilities that are outside of the fire
station and to use the Agency's response vehicles for transportation to
those facilities. Proposal 2 provides that firefighters should not be
assigned duties that are unrelated to their position or regular field of
work.
For the following reasons, we find that both proposals are
nonnegotiable.
The Employer agrees to provide access to FJ (Fort Jackson) dining
facilities to all firefighters who wish to take their meals
outside of the FJ Fire Prevention and Protection Division. Dining
facilities will be utilized only during appropriate or designated
meal times, and when response vehicles and proper communications
are used concurrently with such access.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 1 is nonnegotiable because it
interferes with management's rights under: (1) section 7106(a)(1) of
the Statute to determine its internal security practices by "rais(ing) a
number of situations that could disrupt the fire fighting services of
the (Agency) and, as such, hav(ing) detrimental impact on the (Agency's)
property and personnel"; and (2) section 7106(a)(2)(A) of the Statute
to assign employees by "requir(ing) that management reassign certain
duties to employees based on their decision as to where they will be
eating lunch(.)" Statement of Position at 3-4. The Agency also argues
that the proposal is contrary to 31 U.S.C. Section 1344 because it
"contemplates the use of (Government vehicles) for other than official
purposes." Petition, Enclosure 1.
The Agency notes that its fire department has "responsibility for a
population of over 20,000 individuals and covers a geographic area of
approximately 53,000 acres." Statement of Position at 2. The Agency
states that, in addition to fighting fires and responding to calls for
help, firefighters are responsible for "fire inspections, maintenance
and testing of sprinkler systems, fire extinguishers, and fire hydrants"
as well as "station, ground and vehicle maintenance." Id. Further, the
Agency states that the firefighters work 24-hour shifts and "(n)ormally"
work 13 firefighters to a shift "grouped into teams as part of an engine
company or other response team with each employee responsible for
particular duties as part of that team." Id. The Agency also states
that, normally, firefighters eat their lunches at the fire station.
However, the Agency notes that "when there is a demand for take out
food, one (firefighter) is allowed to pick up the food, using his or her
own private vehicle, and bring the food back to the station house." Id.
The Agency asserts that "(t)he proposal, as written, requires that
any (firefighter) wishing to leave the fire station for lunch be allowed
to do so." Id. at 4. Further, the Agency assert that "at every lunch
where a (firefighter) wants to go out (to lunch), he or she will have to
be authorized a response vehicle." Id. As such, with respect to its
contention that proposal conflicts with its right to assign employees,
the Agency argues that, in the event that the Agency was required to
respond to a fire during the lunch period, the proposal would require it
to reassign firefighters to different teams with different assignments
if some team members decided to go out to lunch while other team members
decided to eat lunch in the fire station.
Regarding its contention that the proposal conflicts with its right
to determine its internal security practices, the Agency argues that
because "any number of response vehicles" could be used by firefighters
going to lunch, delays in the vehicles' response time could result,
causing "extensive amount of unnecessary damage to (G)overnment property
or personnel." Id. at 4, 5. Accordingly, the Agency asserts that
because the proposal could result in disruption delaying the vehicles'
response time, or "having a (firefighter) stranded and unable to be
assigned to another emergency, (the proposal) violates the (A) gency's
internal security practices and the right to assign employees." Id. at
5.
With respect to its contention that Proposal 1 violates 31 U.S.C.
Section 1344, the Agency claims the Authority found nonnegotiable a
proposal containing "(a) similar issue" in National Association of
Government Employees, Local R12-33 and U.S. Department of the Navy,
Pacific Missile Test Center, Point Mugu, California, 40 FLRA 479, 488-91
(1991) (Pacific Missile Test Center). The Agency argues that under
Proposal 1, the firefighters "will determine which employees leave the
fire station to go out for lunch" and, further, the firefighters "would
not be performing work while they were traveling to the dining facility
or while they were there." Statement of Position at 6. The Agency
contends that, under the proposal, the "sole purpose" for the use of the
Government vehicles is for obtaining meals and, therefore, such a
purpose cannot be considered "an 'official purpose' if management has no
authority in determining who or how many" firefighters will be
authorized to use the vehicle. Id. Accordingly, the Agency argues that
because the proposal "'does not present a situation where employees are
in a travel status or at a temporary duty station where the use of a
Government vehicle to obtain meals or for other purposes could fall
within 31 U.S.C. Section 1344(,)'" the proposal is nonnegotiable. Id.
(quoting Pacific Missile Test Center, 40 FLRA at 491).
2. Union
The Union did not file a response to the Agency's statement of
position. In its petition for review, the Union states that Proposal 1
is intended to provide firefighters, "when (they) . . . elect to
occasion (sic) a dining facility in lieu of preparing their own
meals(,)" an "additional option to preparing their own meals." Petition
at 2. The Union states that "(s)uch occasions would normally be
incident to 'call to duty' situations, overtime requirements . . . ,
general medical, physical and emotional disposition of the firefighter,
etc." Id.
The Union disputes the Agency's contention that Proposal 1 violates
31 U.S.C. Section 1344 because it would permit firefighters to use the
response vehicles for other than official purposes. The Union claims
that "the Agency has allowed such vehicles to be utilized for other than
official purposes . . . ." Id. The Union argues that because the
firefighters are in a duty status for 24 hours every other day, they
should be permitted to use the Government vehicles for the reasons
stated in the proposal.
Proposal 1 requires the Agency to provide firefighters who choose to
eat their meals outside of the fire station with access to all base
dining facilities. Proposal 1 also requires that the Agency authorize
firefighters who choose to eat in such facilities to drive Government
response vehicles to and from those facilities and to carry
communications equipment.
For the following reasons, we find that Proposal 1 directly and
excessively interferes with management's right to determine its internal
security practices under section 7106(a)(1) of the Statute and conclude,
therefore, that the proposal is nonnegotiable.
A. Proposal 1 Directly Interferes with the Agency's Right to
Determine Its Internal Security Practices
The Authority has consistently held that an agency's right to
determine its internal security practices under section 7106(a)(1) of
the Statute includes those policies and actions that are part of the
agency's plan to secure or safeguard its personnel, physical property,
and operations against internal and external risks. See Department of
the Navy, Navy Ships Parts Control Center, Mechanicsburg, Pennsylvania
and American Federation of Government Employees, Local 1156, 44 FLRA
728, 730 (1992). Where an agency demonstrates that there is a
reasonable link between its goal of protecting its property and a policy
designed to implement that goal, a proposal that negates the agency's
policy directly interferes with the agency's right to determine its
internal security practices. Id. In determining the negotiability of a
proposal that arguably interferes with the agency's right to determine
its internal security practice, the Authority will not inquire into the
extent of the measures employed to achieve the objective as long as they
reasonably relate to the purpose for which the particular plan or
practice was adopted. See National Treasury Employees Union and U.S.
Department of Energy, Washington, D.C., 38 FLRA 79, 84 (1990).
The Agency's firefighting operation is clearly an internal security
practice because the operation is used by the Agency to protect and
safeguard its personnel and property from fire by preventing and
extinguishing fires. As part of its firefighting operations, the Agency
requires that firefighters eat their lunch at the fire station in order
to protect against the "unnecessary disruption" to its firefighting
operation. Statement of Position at 4. According to the Agency's
uncontroverted statements, "(u)nder normal circumstances, it can be
expected that those (firefighters) eating at the fire station will
arrive at the fire first"; "(w)aiting for the other (firefighters) to
arrive wastes valuable time and causes additional damage to the
installation property and personnel." Id. In our view, the Agency has
shown a sufficient link between its goal of safeguarding personnel and
property and its requirement that firefighters remain at the fire
station during lunch times.
The Union states that the proposal is intended to allow firefighters,
at their election, to leave the fire station and eat their meals at an
Agency dining facility. The proposal also allows any firefighter who
chooses to eat outside of the fire station at the facilities to drive a
response vehicle to and from these facilities. As worded, Proposal 1
would not limit the number of firefighters or Agency response vehicles
that could be away from the fire station during meal times. This
interpretation of the proposal is not contradicted by the Union.
Therefore, we find that Proposal 1 limits the Agency's ability to
determine how many firefighters or response vehicles will remain at the
Agency's fire station during the firefighters' meal times.
Although the proposal limits the firefighters' use of the dining
facilities to "appropriate or designated meal times," management would
still be precluded at such times from determining how many response
vehicles or which firefighters will leave the fire station. By
prescribing a policy which would restrict management's determination of
how many of its firefighters and response vehicles would be available
during meal times, the proposal restricts the Agency's ability to
coordinate the availability and use of its firefighting resources.
Therefore, we conclude that the proposal directly interferes with the
Agency's right under section 7106(a)(1) of the Statute to determine its
internal security practices.
B. Proposal 1 Does Not Constitute An Appropriate Arrangement Within
the Meaning of Section 7106(b)(3) of the Statute
In determining whether a proposal is negotiable as an appropriate
arrangement for adversely affected employees under section 7106(b)(3) of
the Statute, the Authority first determines whether the proposal is
intended as an arrangement for employees adversely affected by the
exercise of a reserved management right. Once the Authority determines
that the proposal is intended as an arrangement, the Authority
determines whether the proposed arrangement is appropriate or whether it
is inappropriate because it excessively interferes with management's
rights. National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA 24, 31-33 (KANG).
We note that the Union did not specifically contend that the proposal
was intended as an appropriate arrangement under section 7106( a)(3) of
the Statute. However, we further note the Union's claim that the
proposal would benefit employees by permitting them during certain times
to eat their meals outside of the fire station. As such, we find that
Proposal 1 is intended as an arrangement for employees who are adversely
affected by management's exercise of its right to determine its internal
security practices through the establishment of a policy requiring
firefighters to eat their lunch at the fire station. However, the record
does not establish that the benefit afforded to employees by the
proposal would outweigh the negative effect on the Agency's right to
determine its internal security practices. Specifically, there is no
evidence in the record to demonstrate that the benefit to firefighters
of permitting them to dine at base dining facilities whenever they
choose to do so is sufficient to outweigh the burden of requiring the
Agency to accept the risk of a diminished capacity to respond to a fire
or other emergency. Consequently, we conclude that the proposal
excessively interferes with management's right to determine its internal
security practices under section 7106(a)(1) of the Statute.
Accordingly, because Proposal 1 directly and excessively interferes
with the Agency's right to determine its internal security practices
under section 7106(a)(1) of the Statute, we conclude that it is
nonnegotiable. In light of this conclusion, we need not address the
Agency's additional contentions that Proposal 1 interferes with its
right to assign employees and that the proposal is inconsistent with 31
U.S.C. Section 1344.
The Employer agrees that GS-0081 Firefighters should not be
required to perform duty assignments outside their position
description, related duties, and/or regular field of work.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 2 is nonnegotiable because it is
interferes with management's right to assign work under section 7106(
a)(2)(B) of the Statute. The Agency claims that, under the proposal,
"all duties that are outside the position description, related duties
and/or regular field of work, cannot be assigned." Statement of Position
at 7-8. The Agency argues that this limitation is not just restricted
to "duties which inherently present a threat of injury" to firefighters,
but rather, includes "all unrelated duties . . . ." Id. at 8. Relying
on Authority precedent, the Agency argues that "(m) anagement's right
'to assign work' under section 7106(a)(2)(B) includes the right to
determine the particular duties to be assigned and the particular
employee to whom or position to which the duties will be assigned." Id.
at 7. Further, the Agency asserts that proposals which seek to limit
the duties that management can assign an employee are nonnegotiable.
The Agency contends that Proposal 2 is not an appropriate arrangement
under section 7106(b)(3) of the Statute because the proposal excessively
interferes with its right to assign work. The Agency asserts that the
Union has not explained "how occasional assignments of duties not
related to the employees' job series negatively impacts on the employees
to such a degree as to warrant a complete prohibition" on the assignment
of duties that are unrelated to firefighter positions. Id. at 9. The
Agency disputes the Union's contention that the proposal "is intended to
ameliorate the adverse consequences of duties which inherently present a
threat of injury" to the firefighters. The Agency argues that the
proposal "goes well beyond this objective by prohibiting the assignment
of all duties which are not job related -- not just those duties which
present a threat of injury." Id. (emphasis in original).
2. Union
As noted above, the Union did not file a response to the Agency's
statement of position. In its petition for review, the Union contends
that Proposal 2 is negotiable as an appropriate arrangement under
section 7106(b)(3) of the Statute. The Union states that the proposal
was not intended "to limit the Agency's right to assign work that is
consistent with those duties normally associated with the Firefighter
(GS-0081) classification series, but rather an attempt to ameliorate the
adverse consequences of work assignments that are totally unrelated to
the subject series, and that inherently present a threat of injury to
the firefighters." Petition at 2. In addition, the Union states that
"some of the duties currently assigned to the firefighters in question,
are duties that are normally performed by skilled employees under the
Federal Wage System." Id.
Proposal 2 provides that management should not assign firefighters
duties that are outside of their position description or that are
unrelated to their duties or regular field of work. In this regard, the
Union notes that "some of the duties currently assigned to firefighters
. . . are duties that are normally performed by skilled employees under
the Federal Wage System." Petition at 2-3.
For the following reasons, we find that Proposal 2 directly and
excessively interferes with management's right to assign work and
conclude, therefore, that the proposal is nonnegotiable.
Proposals that restrict an agency's ability to assign particular
duties to employees directly interfere with management's right to assign
work under section 7106(a)(2)(B). See American Federation of Government
Employees, Local 1658 and U.S. Department of the Army, Army
Tank-Automotive Command, Warren, Michigan, 44 FLRA 1375, 1387 (1992).
Moreover, proposals requiring that management "should" exercise its
rights under section 7106 of the Statute in a certain manner constitute
substantive limitations on the exercise of those rights. See, for
example, National Federation of Federal Employees, Local 1461 and
Department of the Navy, U.S. Naval Observatory, 26 FLRA 808, 809-10
(1987). Proposal 2 provides that management should not require GS-0081
firefighters to perform work that is outside their position description.
Consequently, because the proposal would preclude management from
assigning certain duties to those firefighters, it directly interferes
with its right to assign work.
The Union contends that the proposal is an appropriate arrangement.
As noted above, to determine whether a proposal constitutes an
appropriate arrangement, the Authority must first determine whether the
proposal is intended to be an arrangement for employees adversely
affected by an exercise of a management right. Further, if the proposal
is an arrangement, the Authority then determines whether the arrangement
is appropriate, or whether it is inappropriate because it excessively
interferes with management's rights. KANG, 2 FLRA at 31-33.
The Union asserts that the proposal is "an attempt to ameliorate the
adverse consequences of work assignments that are totally unrelated to
the subject series, and that inherently present a threat of injury to
the firefighters." Petition at 2. Based on the Union's statement, we
find that the proposal is intended as an arrangement for firefighters
adversely affected by the Agency's assignment of duties that are
unrelated to their position descriptions and outside of their regular
field of work. Accordingly, we find that the proposal constitutes an
arrangement within the meaning of section 7106(b)(3) of the Statute.
Having found that the proposal constitutes an arrangement, we next
determine whether the proposed arrangement is appropriate within the
meaning of section 7106(b)(3) or whether it excessively interferes with
management's rights under the Statute.
We note the Union's contention that the proposal is "an attempt to
ameliorate the adverse consequences of work assignments . . . that
inherently present a threat of injury to the firefighters." Petition at
2. The Agency claims, however, without dispute by the Union, that the
Union's proposal is not limited to those duties which present a threat
of injury, but "goes well beyond this objective by prohibiting the
assignment of all duties which are not job related(.)" Statement of
Position at 9 (emphasis in original). By its terms, Proposal 2 prevents
management from assigning duties to firefighters that are "outside their
position description, related duties, and/or regular field of work."
Consequently, the Union's explanation of the meaning of the proposal is
inconsistent with the plain wording of that proposal. We will not adopt
an explanation of a proposal that is inconsistent with the plain wording
of that proposal. See National Association of Government Employees,
Federal Union of Scientist and Engineers, Local R1-144 and U.S.
Department of the Navy, Naval Underwater System Center, Newport, Rhode
Island, 42 FLRA 730 (1991).
Additionally, as the Union did not file a response to the Agency's
statement of position, the Union offers no further explanation to
support the contention that the proposal is limited to those "unrelated
duties" which inherently present a threat of injury to the firefighters.
It is well established that the parties bear the burden of creating a
record upon which the Authority can make a negotiability determination.
National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d
886 (D.C. Cir. 1982), aff'g 6 FLRA 574 (1981). A party failing to meet
this burden acts at its peril. Therefore, we conclude that the proposal
is intended to prevent the assignment of all duties outside the
firefighter's position, related duties, or regular field of work.
Although the record establishes that Proposal 2 benefits employees by
restricting management's ability to assign unrelated duties to the
firefighters, the record does not establish that such a benefit would be
so significant as to outweigh the burden of the broadly worded
limitation placed on management. Specifically, the record contains no
evidence as to whether and the extent to which unit employees are
assigned duties unrelated to their positions, the nature and frequency
of such assignments, or the effect that such assignments have on unit
employees and on their ability to perform the regular duties of their
positions. Therefore, we conclude that the proposal excessively
interferes with management's right to assign work under section 7106(
a)(2)(B) of the Statute and is nonnegotiable.
The petition for review is dismissed.
(*) In its petition for review, the Union notes that the last
sentence of Proposal 1 has been withdrawn. Accordingly, we will not
address that portion of Proposal 1 in this decision. Further, the Union
notes that Proposal 2 has been revised. In its statement of position,
the Agency addressed the revised version of Proposal 2. Accordingly,
only the revised version of Proposal 2 will be considered.
45 FLRA 1090
45 FLRA NO. 110
U.S. Patent and Trademark Office and Patent Office Professionals
Association, Case No. 3-CA-10566 (Decided September 3, 1992)
7116(a)(1), (5), and (8)
UNFAIR LABOR PRACTICE
SIGNATORY AUTHORITY
FAILURE TO FURNISH
INFORMATION
The Administrative Law Judge found that the Respondent violated
section 7116(a)(1) and (5) of the Statute by refusing to negotiate with
the Union over "signatory authority" and certain pay related matters.
The Judge also found that the Respondent violated section 7116(a)(1),
(5), and (8) of the Statute by failing to timely furnish the Union with
certain information requested under 7114(b)(4). However, the Judge
concluded that the Respondent did not refuse to process a particular
grievance, as alleged in the complaint, and recommended dismissal of
that allegation.
The Authority reviewed the rulings made by the Judge and found that
no prejudicial error was committed. The Authority affirmed the rulings
and adopted the Judge's findings, conclusions, and recommended Order.
Case No. 3-CA-10566
U.S. PATENT AND TRADEMARK OFFICE
(Respondent)
PATENT OFFICE PROFESSIONAL ASSOCIATION
(Charging Party/Union)
September 3, 1992
Before Chairman McKee and Members Talkin and Armendariz.
The Administrative Law Judge issued the attached decision in the
above-entitled proceeding finding that the Respondent violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) by refusing to negotiate with the Union over
"signatory authority" and certain pay related matters. The Judge also
found that the Respondent violated section 7116(a)(1), (5), and (8) of
the Statute by failing to timely furnish the Union with certain
information requested under 7114(b)(4). However, the Judge concluded
that the Respondent did not refuse to process a particular grievance, as
alleged in the complaint, and recommended dismissal of that allegation.
The Respondent filed exceptions to the Judge's decision only as it
relates to the alleged refusal to negotiate over pay matters. /1/ The
General Counsel and the Union filed an opposition to the Respondent's
exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed. We affirm the rulings. Upon consideration of the Judge's
decision, the exceptions, and the entire record, we adopt the Judge's
findings, conclusions and recommended Order. /2/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the U.S. Patent and Trademark Office, shall:
1. Cease and desist from:
(a) Failing and refusing to meet and negotiate with the Patent
Office Professional Association (POPA), the exclusive
representative of certain of its employees, over negotiable
proposals with respect to signatory authority and over negotiable
subjects relating to pay and tuition reimbursement.
(b) Failing and refusing to furnish in a timely manner to POPA
information requested by POPA concerning special pay rates.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Negotiate in good faith with POPA about POPA's negotiable
signatory authority proposals and about the requested subjects
relating to pay, and apply any agreement reached retroactive to
the earliest date on which the Patent and Trademark Office was or
becomes authorized to make the proposed types of pay adjustments
effective, but no earlier than May 5, 1991.
(b) Negotiate in good faith with POPA about the subject of
tuition reimbursement.
(c) Furnish to POPA the information concerning special pay
rates requested in POPA's letter dated March 22, 1991.
(d) Post at all of its facilities where bargaining unit
employees are located 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 Assistant Secretary and
Commissioner of Patent and Trademarks, 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 these Notices are not altered,
defaced, or covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
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.
The other allegations in the complaint are dismissed.
WE WILL NOT fail and refuse to meet and negotiate with the Patent
Office Professional Association (POPA), the exclusive representative of
certain of our employees, over negotiable proposals with respect to
signatory authority and over negotiable subjects relating to pay and
tuition reimbursement.
WE WILL NOT fail and refuse to furnish in a timely manner to POPA
information requested by POPA concerning special pay rates.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Statute.
WE WILL negotiate in good faith with POPA concerning signatory
authority and pay matters, and apply any agreement reached retroactive
to the earliest date on which the Patent and Trademark Office was or
becomes authorized to make the proposed types of pay adjustments
effective, but no earlier than May 5, 1991.
WE WILL negotiate in good faith with POPA about the subject of
tuition reimbursement.
WE WILL furnish to POPA the information concerning special pay rates
requested in POPA's letter dated March 22, 1991.
(Agency)
Date: . . . 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: 1111 18th
Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-9758,
and whose telephone number is: (202) 653-8500.
Case No. 3-CA-10566
U.S. PATENT AND TRADEMARK OFFICE
Respondent
PATENT OFFICE PROFESSIONAL ASSOCIATION
Charging Party
Christopher M. Feldenzer, Esquire, For the General Counsel
Phillip Boyer, Esquire, For the Respondent
Pamela Schwartz, Esquire, (Joseph V. Kaplan, Esquire, on the brief),
For the Charging Party
Before: JESSE ETELSON, Administrative Law Judge
The Respondent agency (PTO) is charged with several different unfair
labor practices. The complaint issued by the Regional Director for the
Authority's Washington Regional Office alleges that PTO failed to
respond to requests by the Charging Party (the Union, or its acronym,
POPA) to negotiate over two separate matters -- "signatory authority"
and pay. /3/ The complaint also alleges that PTO failed to respond to
an oral grievance filed by POPA, that it failed to respond to POPA's
request for information to which POPA was entitled, and that it has
refused to provide the requested information. These omissions, the
complaint alleges, constitute unfair labor practices in violation of
sections 7116(a)(1), (5), and (8) of the Federal Service
Labor-Management Relations Statute (the Statute).
A hearing was held on November 12, 1991, in Washington, D.C. Counsel
for the General Counsel, for PTO, and for POPA, filed post-hearing
briefs.
A. Request to negotiate over "signatory authority"
The parties had negotiated about "signatory authority" for some time
and had gone to interest arbitration over it. At a certain point they
had agreed that, in the event that a negotiability dispute concerning
this subject were presented to the Authority, the parties would
negotiate, within 45 days after the Authority issued its decision, "over
the appropriate affected subjects of signatory authority in accordance
with Article 14 (of the parties' 'basic Agreement')." /4/ The parties
did, in fact, present to the Authority the issue of the negotiability of
19 proposals involving PTO's Signatory Authority Program. The Authority
determined that some of the proposals were negotiable and that others
were not. It ordered PTO to "negotiate on request, or as otherwise
agreed to by the parties," over those proposals it found to be
negotiable. Patent Office Professional Association and Department of
Commerce, Patent and Trademark Office, 39 FLRA 783, 838 (1991) (POPA).
The Authority issued its negotiability decision on February 22, 1991.
On April 4 (41 days later), POPA delivered to PTO and PTO received a
written request "that the parties resume negotiations regarding
signatory authority in light of the recent FLRA decision on this
subject."
At an unspecified time after POPA's April 4 request, and perhaps on
more than one occasion, the new Chief of PTO's Labor Relations Division,
Deanna Shepherd, discussed with POPA President Ronald Stern the fact
that the Department of Justice was considering an appeal of the
Authority's negotiability decision to the U.S. Court of Appeals. /5/
Shepherd told Stern she had been advised that PTO was not required to
negotiate yet on the matters that were the subject of the proposed
appeal -- "that everything is on hold anyway" (Tr. 51). Stern responded
that negotiations were required unless PTO obtained a stay of the
Authority's order.
Although not communicated "specifically" (Shepherd, at Tr. 52) to the
Union, Shepherd was also inquiring within the agency whether POPA's
request to "negotiate" was appropriate inasmuch as "we were not at the
point of negotiations in a pure sense, that we had moved forward, and we
were really before the panel". (Id.) /6/ On May 29, PTO still not
having agreed to resume negotiations, POPA executed for filing the
unfair labor practice charge that underlies this case. The charge
states in passing that the Department of Justice "has appealed the
Authority's negotiability decision." (See also Tr. 52., to the same
effect.) The unfair labor practice complaint was issued on August 30,
1991.
On October 10, Shepherd responded in writing to POPA's April 4
request. In this letter she presented PTO's position as to why the
Union's request to begin or resume negotiations within 45 days of the
Authority's decision "is not relevant to the situation at hand." The
reasons she gave were the previously communicated suggestion of a
pending appeal, the fact that the Department of Justice had made a
"final determination" to file an appeal, and the previously
uncommunicated objection that the parties would not be returning to the
bargaining table for "negotiations" in the traditional sense.
Before the hearing in this case (November 12, 1991) but apparently
after Shepherd's October 10 letter to the Union, she learned informally
that the Department of Justice "has decided that they are not pursuing
the appeal" (Tr. 53). She communicated to the Union that PTO was now
willing to "move forward to the panel" (Tr. 54). Apparently, however,
some disagreement remained as to the format for "negotiations" (Tr.
101-4).
B. Request to negotiate over pay issues
On April 10, 1991, POPA requested midterm bargaining on pay, special
pay rates, pay allowances, and pay bonuses. Accompanying the letter of
request were 44 substantive and procedural proposals. (PTO does not
dispute that the request was timely under the provision of the parties'
collective bargaining agreement dealing with midterm bargaining.) The
special pay rates proposals refer to a practice by which PTO examiners
may be paid at rates set by the Office of Personnel Management (OPM)
that are higher than the rates provided under the general schedule for
Government white-collar employees. POPA sought input into the process
by which PTO made requests to OPM for special rates. Other proposals
covered a 5% staffing differential, recruitment bonuses, retention
allowances (all apparently authorized under the Federal Employees Pay
Comparability Act of 1990, P.L. 101-509, and interim regulations issued
by OPM), and law school tuition reimbursement.
At an unspecified time after this request, Shepherd informed POPA
President Stern orally that the proposals were premature because, with
respect to those calling for implementation of the Pay Comparability Act
(FEPCA), the implementing regulations were still in the "comment" stage,
and neither OPM nor PTO's parent organization, the Department of
Commerce, could as yet give PTO guidance on implementation. It was
PTO's position, as communicated to the Union by Shepherd and
characterized, consistent with Shepherd's testimony, by POPA President
Stern, that no other agencies had negotiated over implementation of
FEPCA yet and that PTO did not want to be the agency that set precedents
in this area (Tr. 42-45, 76-77).
Shepherd stated at the hearing that she had also been concerned with
the general issue of negotiability of the subject of special pay rates.
(Authorization for establishing such rates predated FEPCA.) Although
POPA presented Shepherd with an Authority decision holding that the
subject was negotiable, it seemed to her to be a "departure from what
we've been doing in federal government for years." For that reason she
requested research from agency counsel to determine whether that
decision had been appealed. As of the date of the hearing, Shepherd was
satisfied that Authority precedent required bargaining on this subject.
Bargaining over implementation of pay concepts authorized by FEPCA,
however, would have to await determination of agency policy as to "what
they are going to implement" (Tr. 80). Meanwhile, nothing was
communicated to the Union except, as explained above, that the proposals
were premature.
C. The special rates grievance and information request
The parties' collective bargaining agreement provides for an informal
grievance procedure that begins with an oral presentation. In the case
of a grievance by the Union, as opposed to one filed by an employee, it
is presented to the lowest official with authority to adjust the
grievance or "to effectively recommend its adjustment." That official
"shall inform . . . the (Union) . . . of his/her decision within 20
calendar days after receipt of the grievance." A written memorandum is
required if the decision does not resolve the grievance. The contract's
formal grievance procedures follow if the grievant is not satisfied with
the "informal grievance decision."
In September 1990 the Department of Commerce requested approval from
OPM of a special salary rate for certain patent examiners employed by
PTO. This request was apparently made under laws and regulations that
predated FEPCA. In connection with the request, PTO certified to OPM
that sufficient funds were available to pay the special rates. OPM
approved a special rate pay schedule, which was published in FPM
Supplement 990-2, Installment 530-D-237, with an effective date of the
first pay period beginning on or after January 1, 1991. According to
PTO, however, between the date of PTO's certification of fund
availability and the effective date approved for implementation, it
"encountered funding problems which made it impossible to pay the
special pay rate until at least October 1991" (R Exh. 4).
The subject of these special rates apparently came up during a
"labor-management committee" meeting on February 13, 1991. (POPA
President Stern later asserted that it was at that meeting that he
learned that PTO "had secured a commitment from OPM to authorize new
special pay rates for selected examiners." (Unnumbered attachment to GC
Exh. 1(a).) Stern asked management officials at that meeting for
correspondence concerning the request to OPM. That request bore no
fruit.
On March 22, 1991, POPA presented an informal grievance to Deanna
Shepherd and James Gallo, the designees of PTO's Personnel Officer,
Carolyn Acree, on the subject of these special rates. POPA's
representatives complained about not having received the information
previously requested orally. Management officials Shepherd and Gallo
caucused to gather whatever information PTO had and would be willing to
share with the Union. They returned with a copy of the OPM-approved
special rate schedule. POPA's representatives asked why the approved
rates were not being paid. The management officials could not answer
because, as Shepherd testified, they were not familiar with the
situation or PTO's position at that time.
At some point in the meeting POPA renewed its request for the
background correspondence regarding the approval sought from OPM.
Shepherd testified credibly that she and Gallo informed POPA's
representatives that "we were going to have to do some research, and
that we didn't know where the material was that they had requested" (Tr.
62). She also requested that POPA put the information request in
writing. Before the March 22 meeting ended, POPA made it clear that its
oral presentation regarding the failure to pay the authorized special
rates was to be considered an official "informal" contractual grievance.
Later the same day, March 22, Stern composed a written request for
information and delivered it to Personnel Officer Acree, who was with
Shepherd at the time. He requested, under section 7114(b)(4) of the
Statute:
. . . copies of any correspondence with OPM during the last two
years requesting authorization for special pay rates or increased
pay for any of our bargaining unit members along with the
supporting documentation for the requests to OPM. POPA also
requests copies of any responses from OPM concerning these
requests along with any attachments. In addition, for the past two
years, please identify and forward to me copies of the documents
that specifically authorize the payments of special rates and the
pay scales of all of the categories of positions in our bargaining
unit.
Stern's request letter asserted that POPA intended to use the
requested information "in our deliberations regarding pay related
negotiation proposals and to justify (POPA's) claim in the grievance
filed today. . . ."
Shepherd discovered that PTO itself did not know how to proceed on
the issue raised by the grievance. She testified that she informed POPA
that she would have to check with OPM and the Department of Commerce for
guidance. A letter from POPA to PTO's Commissioner on August 12, 1991
(part of R Exh. 3) confirms that Shepherd told POPA representative
Lawrence Oresky in April that PTO had written to OPM concerning the
special rates.
PTO made an inquiry to the appropriate OPM official. Gallo prepared
it on April 2, 1991, and Personnel Officer Acree signed it on April 3 (R
Exh. 4). The memorandum reviewed the events leading up to the special
rates approval and recited the difficulties encountered since the
approval. In addition to the funding problems, it seems that PTO had
still been unable to comply with certain "administrative requirements"
upon which approval was conditioned. The memorandum recited that PTO
had previously made informal inquiries to OPM for guidance, not yet
received, on the "critical issue of specific PTO liability for the
inability to pay the special pay rate on the implementation date given
with the published special pay scale."
Acree's April 3 memorandum informed OPM of the need for guidance, in
order to respond to POPA's grievance and "for PTO to fully understand
their legal obligation relative to the payment of the special pay rate."
Acree asked specifically, among other things, whether PTO could lawfully
postpone or cancel the special rate due to lack of funds, and whether it
could implement the special rate before the administrative requirements
have been met. However, the memorandum contained no inquiry about the
correspondence that POPA had requested.
Notwithstanding a certain degree of urgency in Acree's inquiry to
OPM, April passed into May and May into June without a response. POPA
kept asking for a response from PTO. At the end of May POPA filed the
unfair labor practice charge, which included the allegation that PTO's
failure to respond to the grievance at the informal stage "constitutes
an obstruction to POPA's ability to raise the grievance to arbitration."
Finally, when most of June passed without a word from OPM, PTO sent
POPA, on June 26, a written "formal reply" to POPA's March 22 oral,
"informal" grievance. The substance of the reply was that PTO had made
the April 3 inquiry to OPM, a copy of which was attached to the reply,
and that PTO would continue to "pursue a determination by OPM."
The parties treated the June 26 "formal reply" as a "decision" on an
informal grievance, pursuant to the collective bargaining agreement, but
one that "does not resolve the grievance" (Unnumbered attachment to GC
Exh. 1(a): Article 11, Section 6). This meant that, under Section 7 of
the same article, POPA had to file a "formal written grievance" within
10 days in order to invoke the contract's formal grievance procedure.
However, POPA had still not received any of the information it requested
on March 22 in connection with pay negotiations and the grievance
(which, as noted, concerned PTO's failure to pay special rates).
Lawrence Oresky, for POPA, requested and was granted several extensions
of time to file a formal grievance. POPA filed a formal grievance on
August 12, 1991. In its letter presenting the formal grievance, POPA
reviewed the history of the grievance, including the still outstanding
information request. /7/ After POPA invoked the formal grievance
procedure, the parties moved forward with the grievance as the contract
provides. As of the date of the hearing in this case, PTO's final
pre-arbitration response was due.
Pertaining to the information request, Shepherd testified that none
of the data POPA requested on March 22 was available to PTO at that
time. She testified that PTO had not maintained a file "that had in it
all of the correspondence back and forth" that POPA had requested (Tr.
71-72). PTO therefore "had to call OPM and ask them to search their
files for requests that were made and responses to requests" (Tr. 72).
As for the requested documents that authorize the payment of special
rates, Shepherd testified that management thought that the special rate
schedule it had provided POPA on March 22 was the only special rate
scale "there was," but that later they "found out that was incorrect"
(Id.). Although the record lacks the clarity one might hope for in this
respect, it appears that Shepherd's statement concerning management's
misaprehension about the existence of other pay rate scales applied also
to the requested "pay scales of all of the categories of positions in
our bargaining unit." See Tr. 72-73.
Shepherd informed POPA's representative Oresky, during discussions
about the grievance, that management was trying to reconstruct the
information but could not provide it yet. Shepherd came into possession
of the "complete file" containing all of the requested data, about a
month before the hearing (thus around the middle of October 1991) and
was prepared, within a week after the hearing date, to furnish it (Tr.
73-74, 87). Shepherd did not know where the documents had been found,
but only that her immediate source was Mr. Gallo, who did not testify.
Nor was there any evidence about when particular items of information
within POPA's request became "available" to PTO.
A. Scope and effect of complaint allegations of failure to respond
to requests to negotiate
Paragraph 9(b) of the complaint alleges that PTO "did not respond" to
POPA's April 4, 1991, request to negotiate about signatory authority.
Paragraph 10(b) alleges another failure to respond, this time to POPA's
April 10 request to negotiate over certain pay matters. Paragraph 15
alleges that "(b)y the conduct described in paragraphs 9, 20, 11, and
13, Respondent committed an unfair labor practice in violation of 5
U.S.C. Section 7116(a)(1), (5) and (8)."
The "did not respond" allegations of paragraphs 9(b) and 10(b) of the
complaint originated in POPA's May 1991 unfair labor practice charge,
which provided more detail as to the nature of the allegations. Under
the heading, "Refusal to Re-enter Signatory Authority Negotiations," the
charge presents a brief review of the background and then states that,
"(t)o date, there has been no response by the Agency whatsoever." Under
the same heading, the charge states that an appeal of the Authority's
negotiability decision in POPA had been filed but that the filing of an
appeal does not act as a stay of the Authority's decision.
"Consequently, the Agency's refusal to respond to our request to resume
negotiations constitutes a violation of 5 USC 7116( a)(1) and (5)."
Under its next heading, "Refusal to Negotiate on Certain Pay Related
Matters," the charge alleges that PTO "has remained entirely silent with
respect to this request for negotiations." The charge continues:
The Agency's failure to enter into negotiations constitutes a
violation of 5 USC 7116(a)(1) and (5). The Agency's failure to
provide any response in a timely manner, such as a request for an
extension of time or an explanation of reasons for delay,
constitutes a separate and independent violation of 5 USC 7116(
a)(1) and (5).
At the opening of the hearing, Counsel for the General Counsel moved
to amend paragraphs 9(b) and 10(b) of the complaint to add, after the
words, "did not respond," the words, "and refused to negotiate with
respect to." Each of these allegations would then have concluded with a
reference to one of POPA's requests to negotiate. Thus, for example,
paragraph 9(b) would have read: "Respondent did not respond and has
refused to negotiate with respect to the Union's April 4, 1991, request
to negotiate signatory authority."
Counsel for PTO opposed the motion to amend, contending that it would
add a "brand new allegation" that would change "the nature of proof and
the nature of our evidence" (Tr. 5). Counsel elaborated by arguing that
the duty to respond and the duty to negotiate are "substantively
different" because the duty to negotiate goes beyond the duty to respond
and gets into "the whole duty to bargain issue," including the
negotiability of the subject matter of the request.
Counsel for the General Counsel and for PTO agreed that the
significance of the proposed amendment is its impact on the appropriate
remedy for a violation -- that is -- an order to negotiate instead of an
order merely to respond. Counsel for PTO stated that that is why it is
a "substantive change." He argued that PTO did not have adequate notice
that it would be called upon to defend itself against such an order.
I denied the motion to amend at the hearing, but with the
understanding that I intended to protect PTO only against the necessity
of defending against any allegations of fact that would not have been
litigable under the original complaint. I noted that paragraph 15, by
virtue of its reference to section 7116(a)(5) of the Statute, indicates
(and puts PTO on notice) that the refusals to respond are alleged to
constitute refusals to negotiate. (The duty to respond to a bargaining
request is an essential part of the statutory obligation to bargain.
Army and Air Force Exchange Service, McClellan Base Exchange, McClellan
Air Force Base, California, 35 FLRA 764, 769 (1990) (AAFES).) I
concluded that as long as the General Counsel adduced evidence that
supported the legal conclusion encompassed in paragraph 15, and not
evidence that added to the factual allegations of paragraphs 9(b) and
10(b), PTO would not be prejudiced (Tr. 6, 9). The hearing was
conducted on that basis.
In its brief, PTO updates its argument against consideration of the
allegations of refusal to bargain, contending that it was not provided
an opportunity to litigate anything beyond the refusals to respond. In
one respect, I can now see an arguable point here.
While the charge clearly is aimed both at PTO's failures to respond
and its refusals to negotiate on the issues of signatory authority and
pay, the complaint is arguably drawn more narrowly. However, the
charge's allegations concerning signatory authority link failure to
respond and refusal to negotiate, and in my view it would be fair to
charge PTO with reading the complaint in light of the charge. Thus, PTO
should not have been surprised if the "did not respond" allegation of
paragraph 9(b) of the complaint encompassed the issue of the legitimacy
of PTO's claim that it could resist bargaining while the appeal of the
Authority's decision was pending or the legitimacy of other defenses PTO
might assert for its failure to enter into negotiations.
With respect to the allegations concerning the request to negotiate
over pay issues, the charge treats the failure to respond as an unfair
labor practice that is "separate and independent" from the "failure to
enter into negotiations." By framing paragraph 10(b) of the complaint
solely in terms of failure to respond, the Authority's Regional Director
might appear to have found no merit in the allegation of "failure to
enter into negotiations." That appearance might lead PTO to assume that
it need not be prepared to litigate anything beyond the failure to
respond. Still, given that the complaint also alleged that PTO's
conduct constituted a violation of section 7116(a)(5) -- a refusal to
negotiate -- PTO is not prejudiced by my consideration of a conventional
refusal to negotiate remedy, unless that remedy is premised on facts
that would not have been relevant to the "did not respond" allegation.
As it is, there are few if any disputes over material facts
concerning these issues, and what factual disputes there are seem
confined to the events relating to the nature of PTO's response or lack
of response to POPA's requests to negotiate. There are essentially no
additional facts that go into the question of refusal to bargain. The
real issues presented here are essentially legal issues concerning the
duty to bargain at the time the requests were made and since then.
These are the same issues that must be resolved whether the alleged
unfair labor practices are characterized as failures to respond which
constituted refusals to negotiate or simply as refusals to negotiate.
PTO was, of course, free to make any legal arguments it wished in its
brief. In short, I find that the allegations of refusal to negotiate
are properly before me and that PTO has had a fair opportunity to
litigate them.
B. PTO's actions concerning "signatory authority" negotiations
In POPA, the Authority specifically ordered PTO to negotiate on
certain "signatory authority" proposals, "on request, or as otherwise
agreed to by the parties." 39 FLRA at 838. POPA made a specific request
to "resume negotiations regarding signatory authority in light of" the
Authority's decision in POPA. Moreover, POPA's request accorded with
the provision in the parties' agreement that negotiations over the
appropriate aspects of signatory authority begin within 45 days of an
Authority decision on negotiability.
PTO did respond in a sense to POPA's request. Its initial, informal
response was that the request was premature because an appeal of the
Authority's decision was being considered. Its formal, written
response, made six months after the request (and more than a month after
the unfair labor practice complaint was issued), indicated that at some
time in the interim a "final determination" had been made to file such
an appeal and, also, that the request to negotiate was "not relevant to
the situation at hand" because those proposals ultimately found to be
negotiable "will be returned to the Impasses Panel for impasse
resolution."
PTO's informal response to the April 4 request was not one that
satisfied its statutory obligation, which was to make a good faith
effort to begin negotiations over negotiable subjects, absent waiver or
other valid defenses. PTO relied, presumably in good faith, on advice
from the Department of Justice that it was not obligated to negotiate
while Justice was considering an appeal. However, such reliance is not
the same thing as a good faith effort to negotiate. A party relies at
its own peril on legal advice as to its bargaining obligation. Cf. U.S.
Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA
770, 788 (1990) (Respondent acts at its peril when it refuses to bargain
over proposals subsequently held negotiable by the Authority. "Bad
faith . . . is not a necessary element of finding a violation in these
circumstances.")
Justice's advice was wrong. Where an obligation to bargain is based
on an Authority negotiability decision, a party is not excused from that
obligation during the period in which it might have filed for court
review. Kansas Army National Guard and National Guard Bureau, 10 FLRA
303, 307 (1982). This is especially true where, as here, the parties
have committed themselves specifically to negotiate within an agreed-on
period after the Authority issues its decision.
PTO acknowledged to POPA in its October 10 memorandum, more than
seven months after the Authority's decision, that at least part of the
reason for its failure to accede to the request to negotiate up to that
point was Justice's "final determination" to file a petition for review.
That was an improper reason. In the absence of a stay ordered either
by a court (Section 7123(c) of the Statute) or by the Authority
(National Treasury Employees Union and Federal Deposit Insurance
Corporation, 32 FLRA 1131, 1136 (1988)), the Authority's order to
"negotiate on request, or as otherwise agreed," was to be obeyed.
In ordering PTO to "negotiate . . .," the Authority was perfectly
aware that negotiations over the signatory authority proposals had
advanced to the stage of interest arbitration to resolve the parties'
impasse. POPA, supra, at 785. Shepherd's October 10 formal response to
the April 4 request, in which the request was in effect refused, relied
in part on an asserted difference of opinion as to the forum for resumed
negotiations. This asserted difference does not excuse PTO from an
affirmative response to the request to negotiate. Such a response would
have advanced matters to the point of discussing, if necessary, ground
rules and any other preliminaries.
I conclude, ultimately, that PTO failed, in its response to POPA's
request to negotiate on signatory authority, to fulfill the duty
prescribed in Section 7114(a)(4) of the Statute: to "meet and negotiate
in good faith." By virtue of this failure, PTO violated Sections
7116(a)(1) and (5).
B. PTO's actions concerning pay negotiations
As set forth in more detail above, Shepherd withheld any commitment
to enter into the multifaceted negotiations POPA's requested on April
10, on the grounds that (1) some of the subjects involved were newly
authorized under FEPCA and still in the "comment" stage for implementing
regulations and (2) Shepherd was uncertain as to the negotiability of
special pay rates. No reason was given for not negotiating over POPA's
proposal concerning reimbursement for law school tuition.
PTO now concedes that the subject of special pay rates is negotiable
under Authority precedent (Tr. 80). National Treasury Employees Union
and U.S. Department of the Treasury, Internal Revenue Service, 37 FLRA
147 (1990) (NTEU). With respect to the other subjects of the April 10
request, POPA neither expressly concedes nor contests negotiability. In
fact, the only statement made on behalf of any party concerning the
obligation to bargain over the subjects raised in the April 10 request
is the General Counsel assertion that the "the pay matters at issue" in
POPA's proposals concerned "conditions of employment" within the meaning
of the Statute (citing Fort Stewart Schools v. FLRA, 495 U.S. 641, 110
S.Ct. 2043 (1990)). I cannot tell whether this assertion is intended to
cover the subject of tuition reimbursement. No party addressed at all
the question of the negotiability of any of POPA's specific proposals.
All this leaves the question of subject matter negotiability in an
odd posture. Surely a finding that each of the subjects addressed in
POPA's April 10 request is negotiable is required before PTO may be
ordered to bargain concerning each of them. The General Counsel's case
is implicitly premised on the assertion that each is a negotiable
subject. Yet in the absence of an explicit joining of this issue (and
of even a mention of the issue of the negotiability of the tuition
reimbursement) any determination I might make on the negotiability of
these subjects should have no precedential significance. My finding is,
therefore, that in the face of the implied assertion of negotiability
(by the General Counsel and by POPA), the negotiability of these
subjects has not been disputed. I therefore conclude for the purposes
of this case that they are negotiable. /8/
Based, then, on the fact that POPA made a request on April 10 to
negotiate over negotiable subjects, PTO had a duty to respond by
agreeing to schedule negotiations, at least unless it had a valid reason
for not doing so. See U.S. Department of the Air Force, Headquarters,
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36
FLRA 524, 531-32 (1990) (Wright-Patterson).
Shepherd presented to POPA, as PTO's reason for not proceeding to
bargain about pay items authorized by FEPCA (5% staffing differential,
recruitment bonuses, and retention allowances), the fact that OPM's
regulations on these matters were still in the "comment" stage.
However, PTO does not assert that fact as a legal defense. Rather it
continues to press the contention, treated earlier, that it had no
opportunity to defend against an allegation of refusal to bargain, only
against an allegation of refusal to respond. Again, I see no practical
distinction for the purposes of this case. PTO did in fact present the
reasons it failed to accede to the April 10 request to negotiate. I do
not understand it to argue that, if the complaint had been more specific
in alleging a refusal to bargain, it would have presented different or
additional facts concerning its reasons. Moreover, there does not seem
to be any real dispute about the reasons Shepherd gave to POPA.
Although PTO does not argue that the fact that OPM's FEPCA
regulations were still in the "comment stage" made POPA's bargaining
request premature, its Counsel did contend in his opening statement that
POPA's bargaining requests presented PTO's new labor relations chief
(Shepherd) with "novel issues related to pay, which had not been
previously dealt with by the parties," and that as a result, "the
agency's position on these issues was in some state of flux and
uncertainty." PTO's Counsel implicitly characterized Shepherd's efforts
to keep POPA informed about the agency's progress in reaching "a
resolution of these various issues" and her assurances that "they would
be responding as soon as possible" as conduct that satisfied PTO's
statutory duty.
I cannot equate Shepherd's efforts, though they appear to have been
made in good faith, with compliance by PTO with its duty to negotiate.
To the extent that the argument is that Shepherd was overwhelmed by the
number of tough issues with which she was confronted suddenly on
assuming her new position, such a defense is akin to asserting a lack of
agency resources to provide sufficient labor relations support. That is
not a valid defense. See Wright-Patterson, 36 FLRA at 532-33. To the
extent that the argument is that PTO needed more time to prepare itself
for negotiations, the answer is the same. I must consider the fact that
PTO was not prepared to negotiate on these matters even as of the date
of the hearing (Tr. 80), seven months after the April 10 request. Part
of an agency's duty to negotiate is the duty to "avoid unnecessary
delays." Section 7114(b)(3) of the Statute. The legal arguments relied
on here to justify the delay are simply insufficient to permit a finding
that it was necessary. /9/ As the United States Court of Appeals for
the District of Columbia Circuit stated in American Federation of
Government Employees v. FLRA, 785 F.2d 333, 338 (1986):
Congress has not established a collective bargaining system in
which the duty to bargain exists only at the agency's convenience
or desire, or only when the employer is affluent.
The Authority has adopted that statement. See, e.g., Service Employees
International Union, Local 556 and U.S. Department of the Navy, Navy
Exchange, Pearl Harbor, Hawaii, 37 FLRA 320, 334-35 (1990).
PTO apparently would have preferred first to formulate its own
"proposal to implement the (FEPCA) provisions" and then to give POPA "an
opportunity to come in on impact and implementation bargaining" (Tr.
80). But this is not a case involving changes in conditions of
employment that the employing agency seeks to make. Here, the Union
made a timely request to negotiate about midterm changes it was
proposing. PTO was not privileged to refuse to begin negotiating about
negotiable subjects raised by POPA's request simply because it was not
ready to make proposals. See Wright-Patterson, supra ("(S)ection 7114(
b)(2) of the Statute requires that the Respondent provide 'duly
authorized representatives . . . to discuss and negotiate on any
condition of employment(.)'")
At the very least, PTO was obliged to accept POPA's request to
negotiate, to examine its proposals, and to respond by actually
discussing those proposals (even if the initial response to some of the
proposals was to raise legitimate questions as to their negotiability).
See AAFES, 35 FLRA at 769. PTO did not do even this much, and its
failure to do so violated section 7116(a)(1) and (5).
C. "Failure to respond" to the oral grievance
By taking three months to provide a written response to POPA's oral,
informal special rates grievance of March 22, PTO undisputedly failed to
comply with the contractual requirement that either a decision resolving
an informal grievance or a memorandum stating that the grievance could
not be resolved be provided within 20 days. The General Counsel argues
that this delay constitutes a repudiation of the contract's grievance
procedure, and consequently an unfair labor practice, because it
effectively prevented POPA from proceeding to the formal stages of the
procedure. POPA argues similarly but asserts also that PTO had not met
its obligation to issue a grievance decision even as of the date that
the complaint in this case issued (August 30). POPA contends, further,
that the alleged repudiation of the contract constitutes an unfair labor
practice "even without regard to the consequence on the Union's ability
to pursue this grievance."
I see no repudiation here. A repudiation, unless made expressly (e.
g.: "We have no obligation to follow that procedure.") would have to
manifest itself in a disregard of the obligation to respond. Here, it
is obvious that PTO was not in a position within 20 days, or even three
months, to provide a "decision" resolving the grievance one way or
another. PTO could have, within 20 days, as it in effect did in three
months, provided a memorandum stating that the grievance could not be
resolved informally. And, according to the contract, it should have.
But the question is whether this was more than a "mere breach of the
parties' agreement" and, instead, a "repudiation of the obligation
imposed by the agreement's terms." Department of Defense, Warner Robins
Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211, 1220
(1991).
PTO neither denied nor ignored its obligation to respond. It
informed POPA that it had to check with OPM and Commerce about how to
respond. It promptly (April 3) made a detailed request to OPM for
guidance, expressly for the purpose of responding to the grievance. The
first record indication that POPA pressed PTO for a response (although
there may have been interim conversations) was in a telephone call from
Oresky to Shepherd on April 16, just after the contractual 20 days had
expired. Shepherd informed Oresky about the OPM inquiry. This did not
satisfy POPA, and POPA included PTO's failure to "process" the grievance
among the allegations in its end-of-May unfair labor practice charge.
The statement that accompanied the charge contained, as far as the
record is concerned, the first indication POPA's gave PTO that it
regarded the delay in receiving a formal response as "an obstruction to
POPA's ability to raise the grievance to arbitration." The extent to
which that contention has practical validity is one question, but POPA
did react positively if not immediately. It waited a bit longer for a
response from OPM, then gave POPA a "formal reply" on June 26, about
four weeks after the charge. /10/ Since PTO was unable, even then, to
do no more than recap its efforts up to then, its response was evidently
for the purpose of permitting POPA to proceed, to avoid unfair labor
practice liability, or both. In any case it acted consistently with, if
not technically in compliance with, its contractual obligation. (The
desire to avoid unfair labor practice liability is, at least in this
instance, not to be confused with an attempt to cover up or any other
unlawful or unsavory purpose.)
The delay in responding formally may or may not have realistically
obstructed the grievance process. PTO was unable, at least before it
responded in June, to furnish the information POPA had requested in
connection with the grievance (PTO's failure to furnish will be treated
in the next section of this decision). As it was, POPA secured several
extensions of time to proceed with its formal grievance. I think the
parties understood, and PTO reasonably would have anticipated, that POPA
would prefer to have the requested information before proceeding.
Eventually, POPA went ahead rather than wait longer for the information
PTO said was not yet available.
POPA President Stern testified about the bargaining history of the
contract provision requiring a 20-day response to an informal grievance.
He stated that POPA indicated that it wanted that provision "so we know
what management's defenses are and what management's theory is." (Tr.
26.) When the instant informal grievance was presented, PTO knew and
told POPA, which had little reason to doubt, that PTO could not have
provided POPA with its "defenses" or its "theory". PTO continued to be
unable to do so up to and beyond the time it made the formal reply that
permitted POPA to proceed to the formal grievance stage. All PTO could
have done sooner was to comply with the technical requirement of a
memorandum indicating that the grievance could not be resolved, in this
case because PTO was still seeking the guidance necessary to formulate a
substantive response.
I conclude, in sum, that by failing to comply with the contractual
time limitation for a formal reply to the informal grievance, PTO did
not repudiate that contractual obligation or refuse to process the
grievance. Therefore PTO committed no unfair labor practice in this
respect.
D. Alleged refusal to furnish information
PTO's answer denies each of the allegations of the complaint that
goes to its obligation to furnish the information POPA requested on
March 22, 1991. However, in the presentation of its case and in its
legal arguments, PTO contests only the related issues of when it came
into possession of the requested documents (and thus can be held to have
"maintained" them) and when the documents were "reasonably available" to
it.
Thus, preliminarily, I deem it worth noting that the prima facie
proof that the requested data was "necessary" within the meaning of
section 7114(b)(4)(B), of the Statute, consisting mainly of
representations POPA made in its correspondence with PTO, is barely
sufficient to warrant an affirmative finding. I find statutory
"necessity" in the absence of a real contest of this issue. I note also
the absence of any affirmative indication from PTO that disclosure is
prohibited by law or that the requested data constitutes "guidance,
advice, counsel, or training . . . related to collective bargaining."
Proceeding from what is relatively firmly established in the record,
toward what is less easily ascertained, Shepherd admitted that she came
into possession of the "complete file" containing all the requested data
about a month before the hearing. Presumably, based on other credited
representations of Shepherd, some of the documents had been obtained
either from OPM or from a more careful search of PTO's records.
(Shepherd's earlier, internal inquiries had yielded the response that
PTO did not have copies.) She was unable to say, however, where any
particular documents in the "complete file" had been found, or when any
particular documents came into the hands of the individuals PTO engaged
for the search. Understandably, neither the General Counsel nor POPA
had any evidence on this point.
On the state of this record, and with no basis for discrediting
Shepherd, I cannot find that any particular document was "maintained" by
PTO or was "reasonably available" to it on any ascertainable date before
the middle of October 1991. I have not been asked to draw an adverse
inference from the absence of testimony from anyone directly involved in
PTO's search. Nor can I make a reliable estimate about where such an
adverse inference would lead. However, PTO's delay of at least a month
after obtaining the "complete file" before furnishing it (even assuming
it has done so since the hearing as Shepherd represented it would) was
an unreasonable delay in the circumstances and constituted a failure to
comply with section 7114(b)(4).
Information that must be furnished under section 7114(b)(4) must be
furnished in a timely manner. Bureau of Prisons, Lewisburg
Penitentiary, Lewisburg, Pennsylvania, 11 FLRA 639, 642 (1983). There
is, of course, no strict rule regarding whether a delay of a month
constitutes a failure to comply. But in the circumstances presented
here, where the Union had already been forced to wait seven months while
the agency collected the data, during which period the agency had
adequate time to determine, at least in the main, whether the data was
disclosable, the Union was entitled to swifter action. The fact that a
complaint allegation of refusal to provide this information was already
scheduled for hearing when PTO "received" the documents was certainly no
reason to slow the process down. If anything, it should have imparted a
greater sense of urgency.
Finally, the General Counsel and POPA contend that PTO committed the
independent unfair labor practice of failing to reply to POPA's request
for information, thus violating a duty that section 7114(b)(4) imposes
even when the response would be to inform the union that the information
sought does not exist. U.S. Naval Supply Center, San Diego, California,
26 FLRA 324, 327 (1987). The complaint does allege such a violation.
However, the record does not support it. Shepherd testified credibly
that she discussed with POPA representatives, especially Oresky, the
fact that PTO did not have the requested documents but was attempting to
obtain them. No dates were given for any conversations that occurred
after the written request, but Shepherd also testified credibly that on
March 22, even before POPA put the information request in writing at her
request, she informed its representatives that management would need to
do some research to find the requested documents. Thus, POPA was on
notice that management was attempting to respond. A more formal
"response" would have served no purpose in the circumstances. I
conclude that the alleged violation of failure to respond has not been
established.
Summary
I have found that PTO violated sections 7116(a)(1) and (5) of the
Statute by failing to fulfill its duty to engage in negotiations, on
POPA's request, on the subjects of signatory authority and matters of
pay and tuition reimbursement. I have further found that PTO violated
sections 7116(a)(1), (5), and (8) by failing to furnish requested
information in a timely manner. I have found that PTO did not violate
the Statute in any other way as alleged in the complaint and I recommend
that those allegations be dismissed.
Remedy
POPA has requested a retroactive rather than a prospective bargaining
order for the refusal to negotiate violations, and that copies of the
posted notice be distributed by PTO to all bargaining unit employees.
/11/ As the signatory authority proposals about which PTO refused to
negotiate were previously found negotiable by the Authority, I shall
recommend a retroactive bargaining order with respect to those
proposals. U.S. Department of the Army, Fort Stewart Schools, Fort
Stewart, Georgia, 37 FLRA 409, 422 (1990) (Fort Stewart). The Authority
also has a stated policy of making bargaining orders retroactive in
cases involving refusals to bargain over rates of pay that are
negotiable. U.S. Department of Defense Dependents Schools,
Mediterranean Region, Madrid, Spain, 38 FLRA 755, 759 (1990). I shall
therefore also recommend such an order with respect to negotiations over
the pay matters included in POPA's April 10 request to bargain. /12/
The question remains: retroactive to when? Typically, in cases
where the unfair labor practice involves an agency's continued
insistence that a proposal already found negotiable by the Authority is
nonnegotiable, the bargaining order makes the resulting agreement
retroactive to the date of the assertion of nonnegotiability. See, e.
g., Fort Stewart, 37 FLRA at 423. In cases where the unfair labor
practice that warrants a retroactive bargaining order is a unilateral
change, the Authority typically makes the resulting agreement
retroactive without a date but implicitly to the time of the unilateral
change. See, e.g., U.S. Department of the Air Force, Griffiss Air Force
Base, Rome, New York, 37 FLRA 570, 582-83 (1990); Department of the Air
Force, Scott Air Force Base, Illinois, 35 FLRA 844, 860-61. The express
intent in these cases was to attempt to compensate employees for harm
caused by the changes.
The violations that are of concern here are a little different in
that it is not easy to pin down the dates on which PTO's failures to
respond adequately became refusals to negotiate. Regarding the request
to negotiate over signatory authority proposals, I find that an
appropriate date for retroactive application of any resulting agreement
is April 8, 1991, 45 days after the Authority's negotiability decision
(making it the outside date within which PTO previously agreed to begin
negotiations) and four days after POPA's request to negotiate. However,
in the event that mandatory retroactivity would for some reason impede
negotiations, the parties should be permitted, by mutual consent (that
is, only with POPA's consent), to waive or modify it.
Regarding the negotiations over pay matters, the most appropriate
provision for minimizing loss to employees would appear to be (because
of the unique circumstances presented here) to make any resulting
agreement retroactive to the earliest date on which PTO was or becomes
authorized to make the proposed types of pay adjustments effective, but
no earlier than May 5, 1991 -- the beginning of the second biweekly pay
period after POPA's April 10 request. /13/
As for the requested negotiations over tuition reimbursement, a
prospective bargaining order is appropriate. This subject, although
analogous to pay, has a closer affinity to reduced parking rates, a
subject for which the Authority has, with court approval, ordered
prospective bargaining only. See National Treasury Employees Union v.
FLRA, 910 F.2d 964 (D.C. Cir, en banc, 1990). Finally, I do not find
that the extraordinary remedy of distributing copies of the posted
notice to all bargaining unit employees, as requested by POPA, is
necessary here to bring these unfair labor practices to the employees'
attention. For these reasons, I recommend that the Authority issue the
following order.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the U.S. Patent and Trademark Office shall:
1. Cease:
(a) Failing and refusing to meet and negotiate with the Patent
Office Professional Association (POPA), the exclusive
representative of certain of its employees, over negotiable
proposals with respect to signatory authority and over negotiable
subjects relating to pay and tuition reimbursement.
(b) Failing and refusing to furnish in a timely manner to POPA
data requested by POPA concerning special pay rates.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Negotiate in good faith with POPA about POPA's negotiable
signatory authority proposals and about the requested subjects
relating to pay, and apply retroactively, as described in the
section of this decision called "Remedy," the terms of any
agreement reached as a result of such negotiations.
(b) Negotiate in good faith with POPA about the subject of
tuition reimbursement.
(c) Furnish to POPA the data concerning special pay rates
requested in POPA's letter dated March 22, 1991.
(d) Post at all of its facilities where bargaining unit
employees are located copies of the attached Notice on forms to be
furnished by the Authority. Upon receipt of such forms, they
shall be signed by the Assistant Secretary and Commissioner of
Patents and Trademarks and shall be posted and maintained for 60
consecutive days, in conspicuous places, including all bulletin
boards and other places where notices to employees are customarily
posted. Take reasonable steps to ensure that these Notices are
not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Washington, D.C.
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 with it.
Issued, Washington, DC, April 21, 1992
JESSE ETELSON
Administrative Law Judge
(1) In particular, the Respondent does not except to the Judge's
findings that it violated the Statute by failing to bargain with the
Union over "signatory authority" and by failing to furnish the Union
with information requested under section 7114(b)(4) of the Statute in a
timely manner. Respondent's Exceptions at 3 n.1. In addition, no
exceptions were filed to the Judge's dismissal of the portion of the
complaint concerning the alleged failure to process a grievance.
(2) The Respondent's sole argument is that the Authority should apply
the reasoning of the court in Social Security Administration v. Federal
Labor Relations Authority, 956 F.2d 1280 (4th Cir. 1992), to find that
unions do not have the right to initiate mid-term bargaining under the
Statute, and, therefore, it had no obligation to bargain over the
Union's pay proposals in this case. Insofar as the Respondent argues
that the Authority is required to follow the court's decision, we reject
that argument. See Yellow Taxi Company of Minneapolis v. NLRB, 721
F.2d 366, 384 (D.C. Cir. 1983) (Wright, J., concurring). Moreover, we
respectfully disagree with the court's decision and adhere to our
holding in Internal Revenue Service, 29 FLRA 162 (1987) that the duty to
bargain in good faith imposed by the Statute requires an agency to
bargain during the term of a collective bargaining agreement on
negotiable union-initiated proposals concerning matters which are not
addressed in the agreement, unless during the negotiation of the
agreement the union clearly and unmistakably waived its right to bargain
about the subject matter involved.
(3) POPA is the exclusive bargaining representative of an appropriate
unit of PTO employees. I take official notice of PTO's admission, made
in Authority Case No. 3-CA-10203, U.S. Patent and Trademark Office, that
PTO enjoyed that status as of March 29, 1991. PTO has not contended
that POPA's status changed since then.
(4) Article 14 concerns midterm bargaining. PTO does not contend
that anything in it limits the effect of POPA's April 4, 1991, request
to negotiate.
(5) Shepherd had come on board on March 17. Her surname is
misspelled in the Complaint and in the hearing transcript.
(6) The parties had been referred to the interest arbitrator by the
Federal Service Impasses Panel. It is not clear whether this was a
voluntary or a mandated reference.
(7) In this August 12 letter, POPA requested some additional
information. Failure to furnish this additional data, however, is not
alleged as an unfair labor practice in the complaint in this case.
(8) PTO's brief, at 22, states: "As discussed supra, the agency
believes that no such duty to bargain exists as to most of these pay
matters." But I have searched in vain for such a discussion.
A related set of issues of justiciability arises because no party has
argued about the negotiability of any of the specific proposals that
accompanied POPA's April 10 request. Unlike the negotiability of the
subjects of the request, negotiability findings concerning the specific
proposals are not essential to the disposition of the unfair labor
practice issues raised here. Therefore I have no jurisdiction over
those matters. See U.S. Department of the Treasury, Internal Revenue
Service, Louisville District, Louisville, Kentucky, 42 FLRA 137, 143,
153-55 (1991).
(9) As noted, PTO made no legal argument based on Shepherd's
assertion that OPM's regulations for implementing FEPCA were still in
the "comment" stage. Moreover, I cannot tell from the record if this
assertion meant that OPM was then still accepting comments. Nor can I
tell when the time for submitting comments expired. It could be that in
the course of negotiations PTO could have offered or can offer no more
than to make recommendations to OPM. Even that, however, would be
negotiable. See NTEU, 37 FLRA at 152 n.1.
(10) Thus POPA is incorrect in asserting that the "decision" had not
been provided when the complaint issued. Perhaps counsel inadvertently
confused the complaint with the charge.
(11) It would be unusual for a judge to raise sua sponte the issue of
the appropriateness of a remedy not normally granted by the Authority in
similar cases. It is puzzling, therefore, to find a reference, tinged
with disapproval, to one's "failure to order" a novel remedy for which
no one has asked. See Department of Veterans Affairs, Veterans
Administration Medical Center, Veterans Canteen Service, Lexington,
Kentucky, 44 FLRA 162, 163 n.1, 176 n.3.
(12) One might have read earlier Authority decisions as treating
retroactive bargaining orders with a degree of disfavor. However, the
Authority has disavowed such a reading. See U.S. Department of the
Treasury, Customs Service, Washington, D.C. and Customs Service,
Northeast Region, Boston, Massachusetts, 38 FLRA 989, 993 (1990).
(13) I despise arbitrariness. Yet the most I can say in defense of
the May 5 date is that it is probably no worse than any other date.
WE WILL NOT fail and refuse to meet and negotiate with Patent Office
Association (POPA), the exclusive representative of certain of our
employees, over negotiable proposals with respect to signatory authority
and over negotiable subjects relating to pay and tuition reimbursement.
WE WILL NOT refuse to furnish in a timely manner upon request of
POPA, data concerning special pay rates.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL negotiate in good faith with POPA about signatory authority
and pay and will apply any agreement reached retroactively.
WE WILL furnish POPA the data it requested on March 22, 1991,
concerning special pay rates.
WE WILL negotiate in good faith with POPA about tuition
reimbursement.
(Agency)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Washington,
D.C. Regional Office, whose address is: 1111 18th Street, NW, 7th
Floor, P.O. Box 33758, Washington, DC 20033-0758, and whose telephone
number is: (202) 653-8500.
45 FLRA 1075
45 FLRA NO. 109
Panama Canal Commission, Balboa, Republic of Panama and Panama Area
Metal Trades Council, National Maritime Union and Int'l. Organization
of Masters Mates and Pilots, Case No. 6-CA-80337 (43 FLRA 1483) (Decided
September 3, 1992)
UNFAIR LABOR PRACTICE
RECONSIDERATION
EXTRAORDINARY CIRCUMSTANCES
This matter came to the Authority on the Respondent's motion for
reconsideration and request for a stay of the Authority's decision in 43
FLRA 1483 (1992). The Authority concluded that the Respondent failed to
establish that extraordinary circumstances existed warranting
reconsideration of its decision. Accordingly, the Authority denied the
Respondent's motion for reconsideration and request for a stay.
Case No. 6-CA-80337, (43 FLRA 1483 (1992))
PANAMA CANAL COMMISSION, BALBOA, REPUBLIC OF PANAMA
(Respondent/Agency)
PANAMA AREA METAL TRADES COUNCIL, NATIONAL MARITIME UNION AND
INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS
(Charging Parties/Union)
September 3, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on the Respondent's motion for
reconsideration and request for a stay of our decision in 43 FLRA 1483
(1992). The General Counsel filed an opposition to the motion. The
Union filed a response supporting the motion in part and opposing the
motion in part.
For the following reasons, we conclude that the Respondent has failed
to establish that extraordinary circumstances exist warranting
reconsideration of our decision. Accordingly, we will deny the
Respondent's motion for reconsideration and request for a stay.
In 43 FLRA 1483, the complaint alleged that the Respondent violated
section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by unilaterally terminating the
contractual right of nonprofessional and professional non-preference
eligible excepted service (NEES) employees to appeal adverse actions
under the Respondent's administrative appeals procedures. For reasons
set out in more detail below, we found that the Respondent did not
violate section 7116(a)(1) and (8) of the Statute by refusing to comply
with section 7121(e)(1) of the Statute but that the Respondent violated
section 7116(a)(1) and (5) of the Statute by repudiating certain
contractual provisions.
A. Section 7116(a)(1) and (8)
We determined that the Respondent did not violate section 7116(a)(1)
and (8) of the Statute by failing to comply with section 7121(e)(1) of
the Statute. We found that section 7121(e)(1) applies only in situation
where employees have the right to challenge adverse actions through both
a negotiated grievance procedure and a statutory appellate procedure.
Based on the Civil Service Due Process Amendments, 5 U.S.C. Sections
4303, 7511, 7701 (Supp. II 1990) (the Amendments) and on the reasoning
of court and Authority decisions, we concluded that the NEES employees
in this case may not grieve adverse actions through a negotiated
grievance procedure.
In reaching this conclusion, we noted that, as the Amendments
specifically excluded employees of the Panama Canal Commission from the
extension to NEES employees of rights provided to competitive service
employees for appealing adverse actions, 5 U.S.C. Section 7511(b)(8)
(Supp. II 1990), the employees' status was identical to that of NEES
employees before passage of the Amendments. We also examined various
court decisions, issued before passage of the Amendments, involving
whether NEES employees were entitled to challenge adverse actions
through a negotiated grievance procedure. See Department of the
Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467 (D.C. Cir.
1989), cert. denied, 110 S. Ct. 864 (1990) (Department of the Treasury);
and U.S. Department of Health and Human Services v. FLRA, 858 F.2d 1278
(7th Cir. 1988) (HHS). We noted that in Department of the Treasury and
HHS, the courts found that Congress intentionally denied NEES employees
the rights afforded to other Federal employees for appealing adverse
actions, including access to appeal those actions through the negotiated
grievance procedure. Further, we stated that in National Labor Relations
Board and National Labor Relations Board Professional Association, 35
FLRA 1116 (1990) (NLRB), the Authority adopted the courts' position that
NEES employees were precluded by law from challenging adverse actions
through the negotiated grievance procedure. We also noted that in
Panama Canal Commission and International Association of Firefighters,
Local 13, 35 FLRA 1140 (1990) (Firefighters, Local 13), the Authority
found that NEES employees of the Panama Canal Commission were precluded
by law from appealing adverse actions through the negotiated grievance
procedure.
Consistent with these decisions, we found that the Panama Canal
Commission employees in this case had no right to grieve adverse actions
through a negotiated grievance procedure. We stated that we reached
this conclusion "regardless of whether the adverse actions against the
NEES employees in this case arise under title 5 or under another
personnel system . . . ." 43 FLRA at 1504. Because we concluded that
the NEES employees in this case did not have the right to grieve adverse
actions, we further concluded that section 7121(e)(1) of the Statute did
not apply and that the Respondent's actions did not constitute a refusal
to comply with section 7121(e)(1) of the Statute.
Accordingly, we concluded that the Respondent did not violate section
7116(a)(1) and (8) of the Statute as alleged.
B. Section 7116(a)(1) and (5)
In determining whether the Respondent's unilateral termination of the
disputed portions of three contractual provisions constituted unlawful
repudiation in violation of section 7116(a)(1) and (5) of the Statute,
we first examined whether the disputed portions of the provisions were
consistent with law. We found that the disputed portions of the
provisions did not conflict with section 7121(a)(1) of the Statute. In
this regard, we stated that section 7121(a)(1) did not apply in this
case because that section concerns matters which, unlike the adverse
actions in this case, fall within the coverage of a negotiated grievance
procedure. Noting that the disputed portions of the contractual
provisions were not inconsistent with section 7121(a)( 1) of the Statute
and that there was no assertion or other basis on which to conclude that
the disputed portions were unlawful, we concluded that the disputed
portions of two of the three provisions were lawful and enforceable.
/1/
Having found that the disputed portions of two of the contractual
provisions were consistent with law, we next examined whether the
Respondent repudiated the disputed portions of those provisions in
violation of section 7116(a)(1) and (5) of the Statute. Applying the
framework set forth in Department of Defense, Warner Robins Air
Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211 (1991),
we concluded that the Respondent's unilateral termination of the
disputed portions of the two provisions constituted unlawful
repudiation. In reaching this conclusion, we stated that the parties
did not dispute that:
the portions of the parties' agreement(s) allowing NEES
professional and nonprofessional employees to elect to appeal
adverse actions through the administrative appeals procedures were
previously agreed to by the parties and were provisions of the
parties' collective bargaining agreements.
43 FLRA at 1508. We stated further that the parties did not dispute
that the Respondent unilaterally terminated the provisions as to NEES
employees and had refused to allow NEES employees to appeal adverse
actions through the administrative appeals procedures. As the
Respondent had failed and refused to comply with unambiguous contractual
provisions and as the Respondent's actions constituted "more than a mere
breach of the terms of the parties' agreements," we concluded that the
Respondent violated section 7116(a)(1) and (5) of the Statute. Id.
To remedy the unfair labor practices, we ordered the Respondent to
reinstate, retroactive to the date of repudiation, the right of NEES
employees to appeal adverse actions through the administrative appeals
procedures. We also ordered the Respondent to allow NEES employees who
were denied the right to file an appeal through the administrative
appeals procedures to have the opportunity to file such an appeal.
The Respondent requests that we reconsider our finding that NEES
employees of the Panama Canal Commission are precluded by law from
grieving adverse actions through the parties' negotiated grievance
procedure. The Respondent argues that "the Authority failed to address"
the finding by the court in Department of the Treasury that "Congress
evisioned NGP (negotiated grievance procedure) rights for employees in
other personnel systems." Motion for Reconsideration at 3. The
Respondent also argues that the Authority's finding is inconsistent with
National Association of Government Employees, Local R5-82 and U.S.
Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville,
Florida, 43 FLRA 25 (1991) (Provision 6) (Naval Air Station) and U.S.
Department of Defense Dependents Schools, Germany Region and Overseas
Education Association, 38 FLRA 1432 (1991) (DODDS, Germany), where the
Authority did not conclude that NEES employees were precluded by law
from challenging adverse actions through the negotiated grievance
procedure. The Respondent notes the Authority's citation in the instant
case to U.S. Department of Defense Dependents Schools, Alexandria,
Virginia and Overseas Education, 41 FLRA 982 (1991) (OEA), but contends
that OEA is inconsistent with Department of the Treasury. According to
the Respondent, if "NEES employees in an other personnel system are
prohibited from challenging an adverse action via the NGP, the second
sentence (of section 7121(e)(1)) is rendered meaningless because it only
applies to NEES employees." Motion for Reconsideration at 7.
The Respondent further requests that we reconsider our finding that
the disputed portions of the contractual provisions are lawful and
enforceable. The Respondent argues that the issue of the enforceability
of the provisions was "not contemplated and therefore not addressed by
the parties" because "(n)either the Authority nor any court had ever
held" that NEES employees in other personnel systems were precluded from
using the negotiated grievance procedure to contest adverse actions.
Id. at 2, 8. The Respondent asserts that despite "the (A)gency's
request for oral argument and a subsequent telephonic offer of
supplemental briefs," the issue of the enforceability of the provisions
"was resolved without the benefit of facts or arguments from the
parties." Id. The Respondent maintains that its motion should be
granted in these circumstances so that the Authority may "receive input
from the parties on this issue." Id. at 2.
Additionally, the Respondent contends that the disputed portions of
the contractual provisions are unenforceable. The Respondent argues
that Agency memoranda, alleged drafts of the disputed contractual
provisions, and other exhibits attached to its motion "clearly
demonstrate" that at the time the agreements were negotiated, the
parties believed that "the NGP was available to (Agency) NEES employees
to appeal adverse actions." Id. at 11-12. Moreover, the Respondent
asserts that, in effect, the Authority determined "that the parties
negotiated with respect to the (A)gency procedure" and that the disputed
portions of the contractual provisions "constitute an independent
contractual right of access to the (A)gency procedure." Id. at 11. The
Respondent disputes these determinations. According to the Respondent,
it could not have negotiated an independent contractual right of access
to its administrative procedure consistent with section 7121(a)(1) of
the Statute because neither agreement excludes adverse actions from its
coverage and "section 7121(a)(1) establishes the NGP as the exclusive
procedure for all matters which the parties have not excluded from
coverage of the NGP . . . ." Id. at 12.
The Respondent further argues that to the extent that the Authority
found that the disputed portions of the contractual provisions had been
negotiated, "it is surprising that the Authority did not find (the
Agency) procedure to also be an NGP, and as such, precluded by law." Id.
at 10. According to the Respondent, if allowing NEES employees in other
personnel systems to challenge adverse actions through the negotiated
grievance procedure is inconsistent with Congress' comprehensive scheme,
then these NEES employees should not obtain this right through an agency
grievance procedure.
Finally, the Respondent requests that we reconsider the remedy in
this case. The Respondent argues that the remedy should be applied
prospectively rather than retroactively because the issue of whether the
Respondent's "NEES bargaining unit employees were precluded as a matter
of law from grieving adverse actions under the NGP was not resolved
until the issuance of the Authority's decision in the instant case." Id.
at 12-13. The Respondent also argues that there is no basis for making
access to its administrative appeals procedures retroactive because the
right of NEES employees in this case "to appeal adverse actions under
the (A)gency procedure was only established in the instant case" and
"does not derive from any contractual provision(.)" Id. at 13. Further,
the Respondent contends that a prospective remedy would "relieve() the
(A)gency" of having to retroactively deny NEES employees' access to the
negotiated grievance procedure for contesting adverse actions by
"invalidat(ing) past decisions of arbitrators" rendered pursuant to the
negotiated grievance procedure. Id. Moreover, in view of "the
potential number of appeals which may result from the Authority's
decision," the Respondent requests that the Order in this case be stayed
pending our ruling on this motion. Id. at 14.
A. Union
The Union supports the Respondent's motion to the extent that the
motion requests reconsideration of our finding that NEES employees of
the Panama Canal Commission may not appeal adverse actions through the
negotiated grievance procedure. The Union opposes the Respondent's
motion in all other respects. The Union also opposes the Respondent's
request for a stay.
The Union argues that there is no basis for the Respondent's claim
that the parties did not negotiate a contractual right of access to the
Respondent's administrative appeals procedures. The Union asserts that
the "clear terms" of the disputed portions of the provisions indicate
that "Commission employees have a contractual guarantee of access to the
administrative appeals procedure." Union's Response at 5. The Union
further asserts that the Respondent's Director of Industrial Relations
"acknowledged this guarantee in his two letters . . . repudiating the
disputed (portions of the) contractual provisions." Id. The Union notes
the Respondent's reference to exhibits attached to the Respondent's
motion and contends that "these exhibits are not part of the record of
(this) case." Id. at n.3. The Union claims that if the exhibits "prove
anything at all, it is that the parties did, indeed, negotiate the issue
of access (to) the administrative appeals procedure." Id. at 5 (emphasis
in original).
Further, the Union disputes the Respondent's contention that NEES
employees who cannot appeal adverse actions through the negotiated
grievance procedure must also be barred from using the administrative
appeals procedures. The Union also disputes the Respondent's contention
that the parties, consistent with section 7121(a)(1) of the Statute,
could not have negotiated an independent contractual right of access to
the administrative appeals procedures by NEES employees. According to
the Union, the administrative appeals procedures constitute appellate
procedures within the meaning of section 7121(e)( 1) of the Statute and,
therefore, "it is entirely proper for Commission employees to be
accorded a contractual right to appeal their adverse actions through . .
. the administrative procedure." Id. at 7.
Finally, the Union rejects the Respondent's argument that the
remedial order should be prospective only. The Union argues that a
retroactive order is proper because the "collective bargaining
agreements each contain a clear contractual guarantee of access to the
administrative (appeals) procedure." Id. at 8. The Union further argues
that, contrary to the Respondent's assertion, employees "who
successfully appealed (adverse actions) through the negotiated grievance
procedure should not be stripped of their victories." Id. at 9. Rather,
the Union maintains that those employees should not "be forced to
suffer" because they "were given no choice" but to appeal their cases
through the process which the Respondent made available to them or
"forego their rights altogether." Id. at 8, 9.
B. General Counsel
The General Counsel opposes the Respondent's motion for
reconsideration. The General Counsel contends that the Respondent has
not established extraordinary circumstances in this case because the
Respondent's arguments constitute "mere disagreement with the
Authority's Decision and Order." General Counsel's Opposition at 1.
Moreover, the General Counsel maintains that the arguments raised by the
Respondent concerning the enforceability of the disputed contractual
provisions "were entirely available to (the) Respondent through the
course of the proceeding" and, therefore, do not constitute
extraordinary circumstances. Id.
Further, the General Counsel moves to strike the exhibits attached to
the Respondent's motion because "they do not constitute evidence
properly introduced or received into the record . . . ." Id. at 2
(citing U.S. Department of the Air Force, Headquarters, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524
(1990)).
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish the existence of "extraordinary circumstances"
to request reconsideration of a decision of the Authority. For the
following reasons, we conclude that the Respondent has not established
extraordinary circumstances within the meaning of section 2429.17 to
warrant reconsideration of our decision in 43 FLRA 1483.
A. First Alleged Ground for Reconsideration
According to the Respondent, "the Authority failed to address" the
Respondent's argument that the court in Department of the Treasury found
that "Congress envisioned NGP rights for employees in other personnel
systems." Motion for Reconsideration at 3. Further, the Respondent
argues that the Authority's conclusion is contrary to the Authority's
decisions in DODDS, Germany and Naval Air Station.
The Respondent's argument with respect to Department of the Treasury
constitutes nothing more than disagreement with our decision and an
attempt to relitigate the merits of the case. In 43 FLRA 1483, we
considered Department of the Treasury and stated that "nothing in the
court's decision (in Department of the Treasury) compels a different
result from NLRB in the circumstances of this case." 43 FLRA at 1504.
Accordingly, the Respondent has not demonstrated extraordinary
circumstances within the meaning of section 2429.17 of our Rules and
Regulations. See for example, U.S. Department of the Navy, Norfolk
Naval Shipyard, Portsmouth, Virginia and National Association of
Government Employees, Local R4-19, 39 FLRA 1238 (1991) (Norfolk Naval
Shipyard).
We reject the Respondent's argument that our conclusion in this case
is contrary to the Authority's decisions in DODDS, Germany and Naval Air
Station. In DODDS, Germany, an arbitrator rendered an award concerning
the removal of an employee from employment in the personnel system under
title 20, U.S. Code -- another personnel system within the meaning of
section 7121(e)(1) of the Statute. The Authority found that it had no
jurisdiction over the case because it involved an award relating to a
matter described in section 7121(f) of the Statute. Because the
Authority had no jurisdiction, it did not address the agency's argument
that the NEES employees in that case were precluded by law from
appealing adverse actions through the negotiated grievance procedure.
Moreover, even if DODDS, Germany were construed as holding that NEES
employees in the title 20 personnel system may grieve adverse actions,
we find that such a conclusion would be consistent with our decision
here because, unlike the employees in the instant case, NEES employees
in the title 20 system are not specifically excluded from the coverage
of the Amendments.
In Naval Air Station, the Authority found negotiable a proposal
allowing temporary and intermittent employees working for a
nonappropriated fund (NAF) instrumentality to grieve certain adverse
actions through a negotiated grievance procedure. Pursuant to 5 U.S.C.
Section 2105(c), NAF employees are not covered by personnel laws
applying to competitive and excepted service employees, including laws
dealing with adverse actions, except "as otherwise specifically provided
in (title 5)." Section 7103(a)(3) of the Statute specifically provides
that the terms of the Statute apply to NAF instrumentalities. Such
terms include provisions for negotiated grievance procedures. Further,
adverse action procedures for NAF employees are not provided by law, but
are established by regulation of the employing agency. Therefore, as
access to the negotiated grievance procedure for NAF employees is
governed by the Statute and adverse action procedures are governed by
agency regulations, NAF employees may negotiate access to appeal adverse
actions through the negotiated grievance procedure to the extent not
inconsistent with governing agency regulations. See Naval Air Station,
43 FLRA at 45-46.
Because of the unique nature of NAF employment, the fact that NAF
employees are not covered by the Amendments does not mean that Congress
specifically intended to deny those employees access to the negotiated
grievance procedure. On the contrary, as we stated above, personnel
laws relating to competitive or excepted service employees do not apply
to NAF employees except by specific inclusion, whereas such laws
generally apply to the excepted service employees in this case except by
specific exclusion.
As stated above, NAF employees are specifically covered by the terms
of the Statute governing negotiated grievance procedures and nothing
indicates that such employees are precluded from grieving adverse
actions. Moreover, there are no statutory appellate procedures under
which NAF employees may appeal such actions. See American Federation of
Government Employees, Local 1799 and Department of the Army, Aberdeen
Proving Ground, Maryland, 22 FLRA 574 (1986) (Provision 1) (Aberdeen),
order denying request for reconsideration 23 FLRA 926 (1986) (NAF
employees could not choose to appeal adverse actions through the
agency's internal administrative system because the system was not a
statutory appellate procedure established by or pursuant to law). In
these circumstances, we find that NAF employees may properly grieve
adverse actions.
However, based on the court's decisions in Department of the Treasury
and HHS, we conclude that the specific exclusion of Panama Canal
Commission employees from the Amendments evidences an intent by Congress
that those employees not have access to the negotiated grievance
procedure to appeal adverse actions. The Agency has not addressed the
fact that employees of the Panama Canal Commission are specifically
excluded from the Amendments and, therefore, has offered no other
interpretation of that exclusion. /2/ Further, the Respondent has
previously acknowledged that its administrative appeals procedures were
"established by or pursuant to law" under Aberdeen. 43 FLRA at 1497,
1500. /3/ Accordingly, for the foregoing reasons, we conclude that
Naval Air Station is distinguishable from this case.
Finally, we note the Respondent's contention that our decision in 43
FLRA 1483 renders the second sentence of section 7121(e)(1) of the
Statute "meaningless because (that provision) only applies to NEES
employees." Motion for Reconsideration at 7. The Respondent's
contention appears to assume that our decision in this case applies to
all NEES employees whose adverse actions arise in other personnel
systems. However, our decision applies only to NEES employees of the
Panama Canal Commission. Nothing in our decision addresses whether
other NEES employees whose adverse actions arise in other personnel
systems, such as the title 20 employees in DODDS, are precluded from
appealing adverse actions through the negotiated grievance procedure.
Accordingly, the Respondent's first alleged ground for reconsidering
43 FLRA 1483 provides no basis for reconsidering that decision.
B. Second Alleged Ground for Reconsideration
The Respondent further argues that we should reconsider our finding
that the disputed portions of the contractual provisions are lawful and
enforceable because the issue of the enforceability of the provisions
was "not contemplated" by the parties. Motion for Reconsideration at 2.
Citing exhibits attached to its motion, the Respondent maintains that,
at the time the agreements were negotiated, the parties believed that
"the NGP was available to (Agency) NEES employees to appeal adverse
actions." Id. at 11-12. The Respondent also asserts that the
contractual provisions are unenforceable because they: (1) could not
have been negotiated consistent with section 7121(a)(1) of the Statute;
or (2) constitute a second negotiated grievance procedure or should have
been applied as if they did.
We find, contrary to the Respondent's argument, that the issue of the
enforceability of the contractual provisions was "contemplated" by the
parties. Id. at 2. We noted in 43 FLRA 1483 that by letters dated
February 11, 1988, the Respondent unilaterally terminated the
contractual right of its NEES employees to grieve adverse actions
through the negotiated grievance procedure because, in its view, such
action was required by section 7121(e) of the Statute and the
Authority's decision in Aberdeen. See 43 FLRA at 1484-87. In other
words, the Respondent believed that the contractual provisions were
contrary to Authority case law and the Statute. We find that the
Respondent raised the issue of the enforceability of the terminated
contractual provisions and, thus, clearly "contemplated" that the
Authority would examine that issue. Motion for Reconsideration at 2.
Accordingly, the Respondent's failure to raise further arguments
relating to the enforceability of the contractual provisions does not
constitute extraordinary circumstances warranting reconsideration of
this case. /4/
We further find that the Respondent improperly relies on the exhibits
attached to its motion to dispute the enforceability of the provisions
by allegedly showing the intent of the parties at the time the
provisions were negotiated. The Respondent does not contend, and the
record does not indicate, that the exhibits were previously unavailable
to the Respondent. Moreover, the exhibits address an issue that was
raised by the Respondent at the outset of the proceedings in this case
and, therefore, the exhibits could have been referenced and submitted
during those proceedings. Accordingly, we will not consider the
exhibits and find that the Respondent's failure to timely submit the
exhibits or raise arguments related to them does not constitute
extraordinary circumstances warranting reconsideration of this case.
Further, we reject the Respondent's argument that the disputed
portions of the contractual provisions could not have been negotiated
consistent with section 7121(a)(1) of the Statute. The Respondent's
argument with respect to section 7121(a)(1) of the Statute constitutes
nothing more than disagreement with our decision and an attempt to
relitigate the merits of the case. As such, the Respondent has not
demonstrated extraordinary circumstances within the meaning of section
2429.17 of our Rules and Regulations. See Norfolk Naval Shipyard. The
argument that the disputed contractual provisions were inconsistent with
section 7121(a)(1) was fully addressed in 43 FLRA 1483. See 43 FLRA at
1506-07.
With respect to whether the contractual provisions providing access
to the administrative appeals procedures may constitute a negotiated
grievance procedure, we note that in 43 FLRA 1483, the Respondent
acknowledged that its administrative appeals procedures do not comply
with the statutory requirements for negotiated grievance procedures.
See 43 FLRA at 1497. As the Respondent's administrative appeals
procedures do not comply with the requirements of section 7121(b) of the
Statute, they may not be considered a negotiated grievance procedure.
Accordingly, we reject the Respondent's argument that the contractual
right of its NEES employees to appeal adverse actions through the
administrative appeals procedures may "also be an NGP, and as such,
precluded by law." Motion for Reconsideration at 10. Moreover, we reject
the Respondent's assertion that NEES employees who were denied access to
grieve adverse actions through a negotiated grievance procedure should
be similarly denied access to an agency's administrative appeals
procedures. Nothing in Department of the Treasury or HHS compels a
conclusion that such NEES employees are also precluded from challenging
adverse actions through an agency's administrative appeals procedures,
particularly where, as here, the Respondent has previously acknowledged
that its administrative appeals procedures were "established by or
pursuant to law" under Aberdeen. 43 FLRA at 1497, 1500.
Accordingly, the Respondent's second alleged ground for reconsidering
43 FLRA 1483 provides no basis for reconsidering that decision.
C. Third Alleged Ground for Reconsideration
Finally, the Respondent argues that we should reconsider the remedy
in this case. In particular, the Respondent contends that the remedy
should be applied prospectively only. The Respondent contends that a
prospective remedy would "relieve() the (A)gency" of having to
retroactively deny NEES employees' access to the negotiated grievance
procedure for contesting adverse actions by "invalidat(ing) past
decisions of arbitrators" rendered pursuant to the negotiated grievance
procedure. Id. The Union argues that employees "who successfully
appealed (adverse actions) through the negotiated grievance procedure
should not be stripped of their victories." Union's Response at 9.
Further, the Union maintains that employees should not "be forced to
suffer" because they "were given no choice" but to appeal their cases
through the process which the Respondent made available to them or
"forego their rights altogether." Id. at 8, 9.
We reject the Respondent's contention that the remedy should be
applied prospectively only. Sections 7105(g) and 7118 of the Statute
vest the Authority with broad powers to remedy violations of the
Statute. See generally National Treasury Employees Union v. FLRA, 910
F.2d 964 (D.C. Cir. 1990) (en banc). Specifically, section 7105(g)(3)
provides that in carrying out its functions under the Statute, the
Authority may "require an agency . . . to take any remedial action it
considers appropriate to carry out the policies of this chapter."
Further, section 7118(a)(7) specifies the remedies available in unfair
labor practice cases and includes "such other action as will carry out
the purposes of this chapter." Our order in 43 FLRA 1483 allows those
employees who can demonstrate that they would have filed an appeal
through the administrative appeal procedures but for the Respondent's
improper denial of that right since February 11, 1988, to file such an
appeal. If questions arise as to whether an employee has demonstrated
that he or she would have filed such an appeal but for the Respondent's
denial of that right, such questions can be resolved during compliance
proceedings.
Accordingly, we find that, in the circumstances of this case, such an
order best effectuates the purposes of the Statute and is consistent
with the broad remedial powers authorized by the Statute. We also note
that, contrary to the Respondent's contention, nothing in our Order
requires the Respondent to invalidate past arbitration awards or take
any other action with regard to such awards. To interpret the Order to
require the Respondent to invalidate past awards would penalize
employees who, due to the Respondent's unlawful actions, used the only
procedure available to them at that time.
Consequently, the Respondent's third alleged ground for reconsidering
43 FLRA 1483 provides no basis for reconsidering that decision.
In summary, we find that the Respondent has failed to establish that
extraordinary circumstances exist warranting reconsideration of the
decision, and we will deny the Respondent's motion. For the same
reasons, we will deny the Respondent's request for a stay of the
decision.
The Respondent's motion for reconsideration and the Respondent's
request for a stay of the Authority's Decision and Order in 43 FLRA 1483
are denied.
(1) The disputed portion of Article 11 (the third provision) stated
that it applied to "matters which, under 5 U.S.C. Section 7121(e), an
aggrieved employee may raise either under an appropriate statutory/
Commission procedure or under the negotiated grievance procedure." 43
FLRA at 1507. We found that to the extent that the disputed portion of
the third provision provided employees with options under section 7121(
e) of the Statute, the provision was inconsistent with law and,
therefore, was unenforceable.
(2) The Respondent's submissions to the Authority in 43 FLRA 1483
demonstrate that it was aware of the Amendments. See 43 FLRA at 1499.
(3) Although the Respondent acknowledges that the standard
articulated in Aberdeen has been met, the Respondent disagrees with
Aberdeen. See 43 FLRA at 1497, 1500.
(4) We stated in 43 FLRA that the parties did not dispute that the
provisions in question "were previously agreed to by the parties and
were provisions of the parties' collective bargaining agreements." 43
FLRA at 1508. The Respondent's letters of February 11 indicate that the
disputed Articles were at one time agreed to as contractual provisions,
and the Respondent has not established otherwise.
45 FLRA 1063
45 FLRA NO. 108
NFFE, Local 466 and U.S. Dept. of Agriculture, Forest Service,
Regional Office, Atlanta, Georgia, Case No. 0-NG-2022 (Decided September
3, 1992)
7105(a)(2)(E)
7106(a)(2)(B)
7131(d)
7106(b)(1)
7106(b)(3)
NEGOTIABILITY DETERMINATION
MGT'S RIGHT TO ASSIGN WORK
OFFICIAL TIME
MGT'S RIGHT TO DETERMINE THE NUMBER OF EMPLOYEES
APPROPRIATE ARRANGEMENTS
This case concerned the negotiability of one proposal pertaining to
Union representatives at "fire camps." Fire camps are established by the
Agency when it is necessary to fight a forest fire. They are usually
established near the site of the forest fire, in areas that may not be
easily accessible, and have limited means of communication. The
Authority found that the proposal was negotiable.
The Agency claimed that the proposal was nonnegotiable because, by
providing that at least five Union representatives be assigned to fire
camps for the purpose of performing representational functions, the
proposal excessively interfered with management's rights, under section
7106(a)(2)(B) of the Statute, to assign work and, under section 7106(
b)(1) of the Statute, to determine the numbers of employees assigned to
a work project. The Authority disagreed.
The Authority noted that union representational functions that do not
involve official, prescribed duties of employees do not constitute
"work" within the meaning of section 7106(a)(2)(B) the Statute. Because
union representational functions do not constitute "work" within the
meaning of section 7106(a)(2)(B), the Authority found that such
functions also do not constitute a "work project" within the meaning of
section 7106(b)(1) of the Statute. Consequently, the Authority found
that, by prescribing a minimum number of Union representatives to
perform representational functions at fire camps, the proposal did not
determine the numbers of employees who would be assigned to a work
project. The Authority concluded, therefore, that the proposal did not
directly interfere with management's rights under section 7106(b)(1) of
the Statute.
The Authority found that the benefit to unit employees of ready
access to Union representation at fire camps that is provided by the
proposal outweighed the burden on management's right to assign work that
would result from the proposal. Consequently, the Authority found that
the proposal did not excessively interfere with management's right to
assign work. The Authority found that the proposal was an appropriate
arrangement under section 7106(b)(3) of the Statute.
Case No. 0-NG-2022
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 466
(Union)
U.S. DEPARTMENT OF AGRICULTURE, FOREST SERVICE, REGIONAL OFFICE,
ATLANTA, GEORGIA
(Agency)
September 3, 1992
Before Chairman McKee and Members Talkin and Armendariz. /1/
This case is before the Authority on a negotiability appeal filed
under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute) and concerns the negotiability of one
proposal pertaining to Union representatives at "fire camps." Fire camps
are established by the Agency when it is necessary to fight a forest
fire. They are usually established near the site of the forest fire, in
areas that may not be easily accessible, and have limited means of
communication.
For the following reasons, we find that the proposal is negotiable.
Service Council have the right to represent all bargaining unit
members at fire camps, and since this time has been limited to not
more than one eight-hour shift by the Regional Office, I make the
following proposal to insure proper coverage. (1) Not less than
five (5) Union representatives will be assigned to a fire camp.
(2) All Union representatives will be dispatched to the fire()
camp as required in Article 5, (11)(b). (3) Union representatives,
who are not on duty, shall be lodged at the nearest motel/hotel at
Agency expense.
(5) The Regional Office shall advise the Regional Vice
President of all fire activity in the Region as it occurs.
A. Agency
The Agency asserts that it has no duty to bargain over the entire
proposal, including the preamble, because the dispute in this case arose
during bargaining at a subordinate level of the Agency and the proposal
is inconsistent with the parties' controlling Master Agreement. In this
regard, the Agency cites National Association of Agriculture Employees,
Branch 11 and Department of Agriculture, 14 FLRA 759 (1984) (Department
of Agriculture) and National Federation of Federal Employees, Local 1979
and U.S. Forest Service, San Dimas Equipment Development Center, 16 FLRA
369 (1984) (San Dimas).
Specifically, the Agency argues that paragraph 1 of the proposal,
which requires the Agency to assign at least five Union representatives
to a fire camp, is inconsistent with Article 5.11 of the Master
Agreement, "Union Representation at Fire Camp," because that provision
of the agreement refers to the assignment of only one Union
representative at a fire camp. /3/ Similarly, the Agency contends that
paragraph 2 of the proposal, which states that "(a)ll Union
representatives will be dispatched" to a fire camp, is inconsistent with
Article 5.11b, which refers to only one representative. The Agency
argues that paragraph 3 of the proposal, which states that Union
representatives who are not on duty will be lodged at the nearest motel
or hotel at Agency expense, is inconsistent with Article 5.11b, which
provides that Union representatives will receive the same type of
lodging as other employees assigned to the fire camp and that travel to
a fire camp will be by the most efficient and cost-effective method.
Finally, the Agency claims that paragraph 5 of the proposal, which
states that the Agency's Regional Office will advise the Union's
Regional Vice President of all fire activity in the Region as it occurs,
is inconsistent with Article 5.11a(1) of the agreement, "which clearly
defines when and how the Regional Vice President is to be informed of
fire activity." Agency's Statement of Position (Agency's Statement) at
9.
The Agency also claims that the proposal excessively interferes with
its rights under section 7106 of the Statute. According to the Agency,
an employee serving as a Union representative at a fire camp "is not
performing representational activities as a collateral function; he/
she devotes full time to that function." Id. at 10. See also id. at 6
("It was also understood (during the negotiations of Article 5.11) that
the Union representative's presence at the fire camp was for the sole
purpose of representational activities and that he/she would not be
assigned firefighting duties.") (emphasis in original). Thus, the
Agency contends that it "cannot increase the efficiency and
effectiveness of firefighting activities by utilizing the Union
representative(')s skills in extinguishing the fire; that person can be
used only to perform representational functions should the need arise."
Id. at 10. The Agency asserts that the "practical effect" of the
proposal is "to reduce (m)anagement's available work force . . . ." Id.
The Agency claims that the proposal excessively interferes with
management's right to assign work under section 7106(a)(2)(B) of the
Statute because it deprives management of the services of no fewer than
five employees who would otherwise be performing the Agency's work. The
Agency also claims that the proposal excessively interferes with
management's right, under section 7106(b)(1) of the Statute, to
determine the numbers of employees assigned to a work project by
requiring the assignment of no fewer than five Union representatives to
a fire camp.
B. Union
The Union states that its representatives have the right to represent
unit employees at fire camps and that the intent of the proposal is "to
insure proper coverage." Petition for Review at 1. Noting that fire
camps are generally 24-hour a day operations and that Union
representatives have been limited by the Agency to 8-hour shifts, the
Union asserts that "it is necessary to have five people to cover all
shifts and provide two days off for the other representatives." Id.,
Enclosure.
The Union claims that the proposal is consistent with the
parties' Master Agreement. The Union contends that the agreement was
not intended to limit the number of Union representatives who could be
assigned to a fire camp. Further, the Union maintains that the proposal
would not interfere with management's rights to assign work or to
determine the number of employees assigned to a work project because
"representational duties are not (the) assignment of work(.)" Union
Response at 2. The Union disputes the Agency's claim that the proposal
would "reduce management's available work force." Id. The Union
explains that the Union representatives at a fire camp would be in
addition to the firefighters and would not be "taken from the
firefighting force." Id. Therefore, according to the Union, the Union
representatives "do not affect the mission and do not hamper the
firefighting." Id.
For the following reasons, we find that the proposal is negotiable.
A. Master Agreement
The Agency claims that the proposal is inconsistent with the Master
Agreement. The Agency also claims that the proposal is inconsistent
with the Statute. Under section 7117 of the Statute and Part 2424 of
the Authority's Rules and Regulations, we will consider a petition for
review of a negotiability issue only where the parties disagree over
whether a proposal is inconsistent with law, including the management
rights provisions of section 7106 of the Statute, rule, and regulation.
See Patent Office Professional Association and Department of Commerce,
Patent and Trademark Office, 39 FLRA 783, n.1 (1991). The Agency's
claim that the proposal is inconsistent with the Statute meets the
conditions for review of a negotiability dispute and, therefore, the
Union is entitled to a decision from the Authority on the negotiability
of that proposal. See National Federation of Federal Employees, Forest
Service Council and U.S. Department of Agriculture, Forest Service,
Region 6, Portland, Oregon, 45 FLRA 242, 246 (1992).
However, the Agency's claim that the proposal is inconsistent with a
higher-level agreement does not constitute a claim that the proposal is
inconsistent with law, rule, and regulation. Consequently, that claim
is not properly before us under section 7117 of the Statute and Part
2424 of our Rules and Regulations. See id. We note that the Agency's
contractual claim does not preclude us from determining whether the
proposal is inconsistent with the Statute. See id. The Agency's
contractual claim, therefore, provides no basis for dismissing the
petition for review. See id. at 247. The Agency's contractual claim
should be decided in other appropriate proceedings. See id. at 246.
As to the Agency's additional argument, based on Department of
Agriculture and San Dimas, that it has no duty to bargain at the
regional level over Union-initiated mid-term proposals, we note that
this case is distinguishable from Department of Agriculture and San
Dimas. In Department of Agriculture, the Authority determined that a
negotiability appeal was moot because the General Counsel had determined
in an unfair labor practice that the agency had no duty to bargain at
the local level over the matter in dispute. In San Dimas, the Authority
determined that a negotiability appeal was moot because, under agency
regulations, the agency had no duty to bargain at the local level over
the subject matter of the union's proposal. Without addressing the
continued viability of Department of Agriculture and San Dimas, we find
that, in this case, there is no evidence either that the General Counsel
has determined in an unfair labor practice case that the Agency has no
duty to bargain over the proposal at the regional level or that, under
Agency regulations, the Agency has no such duty to bargain.
B. Management's Rights
The Agency claims that the proposal is nonnegotiable because, by
providing that at least five Union representatives will be assigned to
fire camps for the purpose of performing representational functions, the
proposal excessively interferes with management's rights, under section
7106(a)(2)(B) of the Statute, to assign work and, under section
7106(b)(1) of the Statute, to determine the numbers of employees
assigned to a work project. We disagree.
Union representational functions that do not involve official,
prescribed duties of employees do not constitute "work" within the
meaning of section 7106(a)(2)(B) the Statute. See National Federation
of Federal Employees, Local 1482 and U.S. Department of Defense, Defense
Mapping Agency, Hydrographic/Topographic Center, Washington, D. C., 44
FLRA 637, 676 (1992) (Defense Mapping Agency). Because union
representational functions do not constitute "work" within the meaning
of section 7106(a)(2)(B), we find, for reasons stated in Defense Mapping
Agency and the cases cited therein, that such functions also do not
constitute a "work project" within the meaning of section 7106(b)( 1) of
the Statute. Consequently, we find that, by prescribing a minimum
number of Union representatives to perform representational functions at
fire camps, the proposal does not determine the numbers of employees who
will be assigned to a work project. We conclude, therefore, that the
proposal does not directly interfere with management's rights under
section 7106(b)(1) of the Statute. See also American Federation of
Government Employees, AFL-CIO, Council of Locals No. 214 v. FLRA, 795
F.2d 1525 (D.C. Cir. 1986) (court held that proposal providing 100%
official time for 12 employees, which would result in changes to the
agency's staffing patterns, did not directly interfere with management's
rights under section 7106(b)(1)).
Turning to the Agency's claim that the proposal excessively
interferes with management's right to assign work because it has the
practical effect of reducing management's available workforce, we note
at the outset the Union's contention that the proposal would not affect
the numbers of employees available to perform firefighting duties. The
Union states that the Union representatives at the fire camps would be
in addition to the firefighting force. Moreover, the Agency states, and
the Union does not dispute, that the Union representatives would be at
the fire camps only to perform representational functions. Therefore,
the proposal effectively requires the Agency to agree to authorize
official time for at least five Union representatives during the period
of the fire camps. Consequently, we interpret the proposal as providing
for a minimum of five Union representatives at fire camps who would:
(1) perform only representational functions; (2) be on official time;
and (3) be in addition to the firefighting force.
Interpreted in this manner, we find that the proposal would not have
the effect of reducing the firefighting force. However, as argued by
the Agency, because the employees serving as Union representatives would
be at the fire camps, they would not be available for other duties
elsewhere, including the normal duties of their positions. In other
words, during the period that the Union representatives are at fire
camps on official time performing representational functions, the Agency
would be prevented from assigning other duties to them.
We recently reexamined the relationship between management's right to
assign work under section 7106(a)(2)(B) of the Statute and the
authorization to negotiate official time for representational purposes
under section 7131(d) of the Statute. See BATF, 45 FLRA at 346-48.
Specifically, we considered the effect of the Supreme Court's decision
in Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.
S. 922 (1990) (IRS v. FLRA) on the Authority's holding, in Military
Entrance Processing Station, Los Angeles, California, 25 FLRA 685
(1987), that section 7131(d) carves out an exception to section 7106(
a). We found that matters pertaining to official time are
distinguishable from the matters pertaining to negotiated grievance
procedures that were involved in IRS v. FLRA and concluded that we would
"continue to carve out an exception to section 7106 in order to maintain
the negotiability, where otherwise warranted, of matters involving
official time." BATF, 45 FLRA at 348.
Because the proposal in this case requires the Agency to authorize
official time for a minimum of five Union representatives for the period
of a fire camp, we find, consistent with BATF, that the proposal falls
within the exception to section 7106(a)(2)(B) that is provided under
section 7131(d) for matters pertaining to official time for union
representational activities. We conclude, therefore, based on BATF,
that the proposal is negotiable.
We also noted in BATF that, alternatively, "where it is asserted that
a provision seeking to negotiate over official time under section 7131
is inconsistent with section 7106, we will analyze such provisions to
determine whether the provision directly interferes with management's
rights under section 7106 and whether it constitutes an appropriate
arrangement that is negotiable pursuant to section 7106(b)( 3)." Id. at
349. Consequently, although the Union in this case did not claim that
the proposal constitutes an appropriate arrangement, we will consider
whether the proposal directly interferes with management's rights under
section 7106 and, if so, whether it constitutes an appropriate
arrangement.
Proposals that place restrictions on an agency's ability to deny a
request that an employee be excused from performing assigned duties for
the period covered by the request directly interfere with management's
right to assign work under section 7106(a)(2)(B) of the Statute. Id. at
350. By requiring the Agency to grant official time to at least five
Union representatives to be assigned to a fire camp, the proposal in
this case restricts the Agency's ability to deny those employees'
requests that they be excused from performing assigned duties for that
period. Consequently, we find, consistent with BATF, that the proposal
directly interferes with management's right to assign work under section
7106(a)(2)(B).
To determine whether the proposal is negotiable under section 7106(
b)(3), we initially must determine whether the proposal constitutes an
arrangement within the meaning of that section. To do that, we must
determine whether the proposal seeks to address or compensate for the
adverse effects on employees that may result from the exercise of
management rights. See National Association of Government Employees,
Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986)
(KANG). See also BATF, 45 FLRA at 350-51.
As noted above, fire camps are established when it is necessary to
fight a forest fire. Because such camps are away from employees' normal
work locations, where Union representatives would be readily available,
the assignment of employees to a fire camp for the purpose of fighting a
fire deprives them of immediate access to their representatives.
Moreover, the Union claims, and the Agency does not dispute, that fire
camps are a 24-hour operation. According to the Union, because fire
camps are 24-hour operations, three Union representatives are necessary
to provide representational services each day and at least five
representatives are required to cover an entire week to allow for
sufficient days off. We find, therefore, that the proposal constitutes
an arrangement for employees who would be adversely affected by the
exercise of management's right to assign work which could result in the
unavailability of immediate Union representation while assigned to duty
at a fire camp. We also find that the proposal constitutes an
arrangement because it would allow employees to see a Union
representative if they were adversely affected by management's exercise
of its other rights. See BATF, 45 FLRA at 352. Consequently, we
conclude that the proposal constitutes an arrangement for employees who
are adversely affected by management's rights under section 7106 of the
Statute.
In order to determine whether this proposed arrangement is
appropriate within the meaning of section 7106(b)(3), we must examine
the competing practical needs of the parties and determine whether the
negative impact of the proposal on the exercise of management's rights
is disproportionate to the benefits afforded employees by the proposal.
KANG, 21 FLRA at 33. See also BATF, 45 FLRA at 352.
Unit employees assigned to fire camps would benefit by immediate
access to Union representation at any time of the day or night in order
to resolve disputes as to conditions of employment, for example,
conditions at the camp or conditions involved in fighting a fire. As to
the impact of the proposal on management's rights, we found above that
because the Union representatives assigned to the fire camps would be in
addition to the employees fighting the fire, they would not reduce the
firefighting force. Moreover, although employees serving as Union
representatives at fire camps would not be available for their normal
duties, there is no evidence in the record to suggest that their
activities at a fire camp would involve a prolonged absence from those
duties. In addition, neither the terms of the proposal nor the Union's
explanation suggests that the parties would be precluded from working
out a rotation system for Union representatives at fire camps to
minimize the effect of employee absences.
For these reasons, we find that the benefit to unit employees of
ready access to Union representation at fire camps that is provided by
the proposal outweighs the burden on management's right to assign work
that would result from the proposal. Consequently, we find that the
proposal does not excessively interfere with management's right to
assign work. We find, therefore, that the proposal is an appropriate
arrangement under section 7106(b)(3) of the Statute. Accordingly, we
conclude that the proposal is negotiable.
The Agency must, upon request or as otherwise agreed to by the
parties, negotiate on the disputed proposal in this case. /4/
(1) For the reasons set forth in his separate opinion in National
Treasury Employees Union and U.S. Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, 45 FLRA 339 (1992) (BATF), Member
Armendariz concurs in finding that the proposal in this case is
negotiable based on the carve-out theory and dissents from the
conclusions as to appropriate arrangements.
(2) The Union withdrew paragraph (4) of the proposal. Union's
Response to Agency's Statement of Position (Union's Response) at 2.
Consequently, we will not consider that paragraph.
(3) The text of Article 5.11 is set forth as an Appendix to this
decision.
(4) In finding the proposal to be negotiable, we make no judgment as
to its merits.
Article 5.11 of the parties' Master Agreement provides as follows:
Union Representation at Fire Camp:
a. Officers or Representatives of NFFE Forest Service Council
have the right to represent all bargaining unit employees at fire
camp. The following procedures apply to base fire camps:
(1) When a base fire camp is established on a Forest Service
fire and is operated by a Forest Service Incident Command Team and
reaches a size of 500 firefighters, the Regional Vice President
(RVP) will be notified.
(2) Notification will be accomplished by use of the DG (Data
General telecommunications system). That notification will inform
the RVP of the name of the Forest, location of the fire, and the
name of the Incident Commander. The Incident Commander will be
notified of the name and DG address of the RVP. Notification to
the Union will normally be within 24 hours after the fire camp has
been established.
(3) The name, telephone number, and DG address of the RVP or
designee who could be dispatched to the base fire camp will be
conspicuously posted in the camp. The employee will be granted
reasonable official time to contact the named Union official.
b. If the RVP or designee determines a need to send a Union
representative to a base fire camp, he/she will contact the
Regional Employee Relations Officer or designee. They will make
arrangements for dispatch of a Union representative to the fire
camp. If the Union representative is dispatched, dispatch will be
through the regular fire dispatch channels.
c. The Union representative will check in with the Finance
Chief or Comptroller on arrival at the fire camp, and will inform
the Finance Chief or Comptroller when he/she leaves.
Where there is a grievable situation arising at fire camp, the
time limit for raising that issue to the appropriate official will
not begin to run until the day after the employee returns to
his/her official duty station.
45 FLRA 1051
45 FLRA NO. 107
NTEU, Chapter 174 and U.S. Dept. of the Treasury, Customs Service,
Region IV (Hayford, Arbitrator), Case No. 0-AR-2227 (Decided September
3, 1992)
7122(a)
7106(a)(2)(B)
7106(a)(2)(A)
ARBITRATION EXCEPTIONS
MGT'S RIGHT TO ASSIGN WORK
MGT'S RIGHT TO ASSIGN EMPLOYEES
APPROPRIATE ARRANGEMENTS
ABROGATION OF MGT'S RIGHTS
The Arbitrator found that the Agency's change in the assignment of
overtime work performed at the Port of St. Petersburg violated the
parties' collective bargaining agreement. The Arbitrator ordered, among
other things, that aggrieved employees be awarded backpay.
The Authority found that the Agency failed to establish that the
award was deficient, and denied the Agency's exceptions. The Authority
found that these provisions constituted an arrangement for employees
adversely affected by the exercise of management's right to assign work
on an overtime basis. The Authority further found that the provisions
of the parties' agreement enforced by the Arbitrator did not abrogate
the Agency's right to assign work or employees, or to determine the
personnel by which Agency operations are conducted.
Case No. 0-AR-2227
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 174
(Union)
U.S. DEPARTMENT OF THE TREASURY, CUSTOMS SERVICE, REGION IV
(Agency)
September 3, 1992
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Stephen L. Hayford filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. The Union filed
an opposition to the Agency's exceptions.
The Arbitrator found that the Agency's change in the assignment of
overtime work performed at the Port of St. Petersburg violated the
parties' collective bargaining agreement. The Arbitrator ordered, among
other things, that aggrieved employees be awarded backpay.
For the following reasons, we find that the Agency has failed to
establish that the award is deficient. Accordingly, we will deny the
Agency's exceptions.
The Union filed a grievance over the Agency's decision to change the
manner in which it assigns inspectional work performed on an overtime
basis at the Port of St. Petersburg when the Port Director is
unavailable. The Port Director is the only full-time Agency employee
assigned to St. Petersburg on a permanent basis. Approximately 20-30
percent of the Port Director's time is spent performing inspectional
duties that ordinarily are performed by bargaining unit employees at
larger ports.
Prior to the spring of 1990, bargaining unit employees from the Port
of Tampa were routinely assigned to perform overtime inspectional work
at St. Petersburg in the Port Director's absence. During the spring of
1990, the Agency began to assign overtime work to supervisory inspectors
from Tampa, rather than to bargaining unit employees. The use of
supervisory personnel to perform overtime work reduced the amount of
overtime available to Tampa bargaining unit employees and decreased
their earnings.
A grievance was filed over the change in the procedure for assigning
overtime at St. Petersburg. The grievance was not resolved and was
submitted to arbitration. The Arbitrator framed the issues as follows:
1. Is the instant Grievance a proper subject for arbitration
under the National Agreement?
2. Does the Agency's present policy of not giving bargaining
unit Customs Inspectors assigned to the Port of Tampa the first
opportunity to perform the disputed overtime work at the Port of
St. Petersburg result in a violation of any relevant provisions of
the National Agreement, INS-II, or the Miami Region Supplemental
Regional Agreement? If so, what is the proper remedy?
3. Did the Agency violate Section 7116(a)(1) and (a)(5) of the
Federal Services (sic) Labor-Management Relations Statute when it
failed to negotiate with the Union before altering the manner in
which the disputed Port of St. Petersburg overtime work is
assigned? If so, what is the proper remedy?
Award at 5 (underscoring in original).
Initially, the Arbitrator determined that the grievance was a proper
subject for arbitration. The Arbitrator stated that the Agency's
contention that the grievance was not arbitrable, because its actions
were a legitimate exercise of its contractual and statutory management
rights, more appropriately addressed the merits of the grievance. The
Arbitrator explained that if the Union could not take issue with the
Agency's decisions regarding the exercise of its management rights, the
Agency could preclude the arbitration of a grievance merely by invoking
the management rights provisions of the parties' national agreement or
the Statute. In sum, the Arbitrator concluded that the Agency had
failed to sustain its burden of proving that the grievance was not
arbitrable.
Turning to the merits of the grievance, the Arbitrator examined
relevant provisions of the national agreement, a regional supplemental
agreement, and a directive entitled INS-II, which the Arbitrator
determined had been negotiated by the parties. /1/ Based on these
agreements, the Arbitrator found that the Agency retained the right to
determine the circumstances under which overtime would be required as
well as the right to determine the numbers, types and grades of
employees to be assigned overtime work. However, the Arbitrator also
found that, in making its overtime assignment decisions, the Agency was
required to exercise its management rights in accordance with the
relevant substantive and procedural requirements of the cited
authorities.
The Arbitrator found, more particularly, that provisions contained in
the national agreement require that overtime earnings be equalized to
the maximum extent possible and that overtime assignments be made and
rotated on a fair and objective basis. To satisfy these requirements,
the Arbitrator found that the regional supplemental agreement
establishes a list of participating groups of employees, within which
available overtime assignments must be equalized to the maximum extent
possible. The Arbitrator determined that all the bargaining unit
inspectors assigned to Tampa were included in participating group 1,
which is defined as all permanent full time inspectors GS-5/7/9/11.
The Arbitrator then addressed whether bargaining unit employees who
are assigned to Tampa have a right under the regional supplemental
agreement to share equally in overtime work outside of Tampa, including
St. Petersburg. The Arbitrator determined that there was a well-defined
past practice, as well as a current practice, that entitled full-time
Tampa bargaining unit inspectors and supervisory inspectors to share in
the available overtime at St. Petersburg. Therefore, the Arbitrator
concluded that the Tampa bargaining unit inspectors in participating
group 1 had the right, under the regional supplemental agreement, to
share equally in the available overtime at St. Petersburg.
The Arbitrator then looked to INS-II as "(t)he final component of the
parties' bargain" in order to determine whether overtime would be
assigned first to Tampa bargaining unit employees or supervisory
personnel. Award at 16. The Arbitrator found, quoting the relevant
portion of INS-II, that "'(i)nspector overtime assignments will normally
be staffed by inspectors.'" Id., quoting INS-II. The Arbitrator
determined that under a "call-out" order established in INS-II, if the
disputed overtime work at St. Petersburg was inspectional work, Tampa
bargaining unit inspectors were entitled to be offered the opportunity
to perform the work before it was offered to Tampa supervisors. The
Arbitrator explained that this provision of INS-II directly supported
the Union's claim that the parties "have agreed to a strong preference
for the assignment of inspectional overtime work to bargaining unit
(i)nspectors." Id.
The remaining question addressed by the Arbitrator was whether the
overtime work was "inspectional/inspector work, or . . . bona fide
supervisory work." Id. at 17 (footnote omitted). The Arbitrator found
that the inspectional duties were, in fact, bargaining unit work and
that such work had been assigned to bargaining unit employees in the
Port Director's absence until sometime in 1990.
In making his findings, the Arbitrator rejected the Agency's argument
that because the Port Director, a supervisory employee, normally
performs and has first claim to the disputed overtime work, it could
properly be assigned to Tampa supervisory employees in the Port
Director's absence. The Arbitrator stated that the Agency had
overlooked the hybrid nature of the Port Director's position, noting
that the Port Director performs inspectional work as well as supervisory
tasks because he is the only full-time employee assigned to St.
Petersburg. With respect to the Agency's argument that assigning a
supervisory employee on an overtime basis satisfies the Agency's need to
have a supervisor present at St. Petersburg when inspections are
performed, the Arbitrator found no requirement that a supervisor be
present when "one-man inspection is performed on an overtime basis at a
small operation like the Port of St. Petersburg." Id. at 18 (footnote
omitted).
In sum, the Arbitrator found that, prior to 1990, bargaining unit
employees from Tampa were assigned to perform inspectional duties when
the Port Director was unavailable. The Arbitrator concluded that when
the Agency commenced assigning the overtime to Tampa supervisors without
first offering it to Tampa bargaining unit employees, the Agency
violated INS-II, the regional supplemental agreement and the national
agreement. /2/
To remedy the violation, the Arbitrator ordered that, to the extent
the disputed overtime work involved only inspectional services and not
"bona fide supervisory tasks" Tampa bargaining unit inspectors be given
the first opportunity to work the overtime. Id. at 19. The Arbitrator
also ordered backpay for Tampa bargaining unit employees "for each
occasion during 1990, 1991 and 1992 fiscal years" in which they would
have been offered the opportunity to perform overtime work but for the
Agency's improper action in denying the employees overtime work. Id.
The Arbitrator added that if any of the overtime assignments involved
the performance of "true supervisory tasks (alone, or in combination
with the performance of inspectional tasks)," there was no violation of
the agreements and no basis for an award of backpay. Id. The
Arbitrator retained jurisdiction of the case to resolve any disputes
arising from his remedial order and to entertain a Union petition for
attorney fees.
A. The Agency's Exceptions
The Agency contends that the award is contrary to management's rights
to assign work and to determine the personnel by which agency operations
will be conducted under section 7106(a)(2)(B) of the Statute. The
Agency also contends that the award is contrary to its right to assign
employees under section 7106(a)(2)(A) of the Statute.
The Agency contends that the award encroaches on its discretion to
determine the personnel who will perform work at a particular location
because it does not permit the Agency to assign all the disputed
overtime work to Tampa supervisory inspectors when the St. Petersburg
Port Director is unavailable. Instead, the Agency states that when the
overtime assignment is inspectional in nature, the award requires it to
first offer the work to Tampa bargaining unit inspectors. The Agency
claims that the Arbitrator improperly substituted his judgment for that
of the Agency and that the award, therefore, interferes with the right
to assign work. The Agency also cites various Authority decisions for
the proposition that restrictions on the assignment of work to
nonbargaining unit employees interfere with management's rights under
section 7106(a)(2)(B) of the Statute.
In addition, the Agency argues that the right to assign work under
section 7106(a)(2)(B) includes the right to determine the qualifications
necessary to perform the work assignment and the right to determine
whether a particular employee meets those qualifications. The Agency
maintains that it determined that supervisory status was a necessary
qualification for performing the duties ordinarily performed by the St.
Petersburg Port Director and that the Arbitrator improperly substituted
his judgment for that of the Agency when he concluded that supervisory
status was necessary only to perform "'bona fide supervisory tasks . . .
.'" Exceptions at 9, quoting Award at 19. The Agency states that its
decision to have a supervisor present at St. Petersburg is an
elementary management right and is not subject to arbitral review.
The Agency also contends that the award is contrary to management's
right to assign employees under section 7106(a)(2)(A) because the award
requires the assignment of a bargaining unit employee in the Port
Director's absence. The Agency claims that the Arbitrator's references
to an earlier management decision to assign non-supervisory employees to
perform some overtime work at St. Petersburg is not relevant to its
current determination that supervisory status is a necessary
qualification for overtime assignments at St. Petersburg. The Agency
maintains that included within its management rights is the right to
change its earlier position regarding the need for a supervisory
employee at St. Petersburg.
Additionally, the Agency asserts that the abrogation test established
in Department of the Treasury, U.S. Customs Service and National
Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service) is not
applicable to this case because neither the parties' past practice nor
INS-II, on which the Arbitrator relied, involve the enforcement of
collective bargaining agreement provisions.
Alternatively, the Agency contends that if the Authority finds that
Customs Service is applicable, INS-II does not constitute an arrangement
for employees adversely affected by the exercise of management's rights.
The Agency claims that bargaining unit employees cannot be adversely
affected because the Agency has merely replaced one supervisory
employee, the Port Director, with another, a Tampa supervisory
inspector. The Agency further claims that the call-out provision in
INS-II for determining the order in which employees are offered overtime
cannot be considered an arrangement because it was not negotiated with
the Union. Instead, the Agency states that it was unilaterally
established before the Union became the exclusive representative of the
Agency's employees.
However, should the Authority find that INS-II constitutes an
arrangement, the Agency claims that the award abrogates its right to
assign employees under section 7106(a)(2)(A) and its rights to assign
work and determine the personnel by which Agency operations are
conducted under section 7106(a)(2)(B) of the Statute. In support, the
Agency cites Authority decisions in "negotiability cases and
pre-abrogation test arbitration cases . . . ." Exceptions at 19. The
Agency asserts that the award precludes it from determining when it can
assign the overtime work of the St. Petersburg Port Director to a Tampa
supervisory inspector insofar as the award mandates that such work
always be assigned to Tampa bargaining unit inspectors except under very
limited circumstances. The Agency also asserts that the award precludes
it from determining that supervisory status is a necessary qualification
for the assignment of both work and employees.
B. The Union's Opposition
The Union contends that the test set forth in Customs Service is
applicable to the instant case because the Arbitrator's award rests on
an interpretation and application of the parties' collective bargaining
agreement. Specifically, the Union asserts that the provision of INS-II
giving preference in overtime assignments to bargaining unit inspectors
was the product of collective bargaining.
Additionally, the Union argues that the provisions of the national
agreement, the regional supplemental agreement and INS-II constitute
appropriate arrangements for employees adversely affected by the
Agency's right to assign overtime and do not abrogate the exercise of
this management right. As to the latter contention, the Union claims
that the award does not preclude the Agency from deciding that overtime
is needed or prevent the Agency from determining which supervisory
duties are required at any port. Rather, the Union maintains that the
Arbitrator merely interpreted various provisions of the parties'
agreements regarding the procedures the Agency is required to follow in
making overtime assignments.
Contrary to the Agency's assertion, we find that the analysis set
forth in Customs Service is appropriate to resolve the Agency's
exceptions. We further find that the Agency has not established that
the award is deficient.
In Customs Service, we reexamined our approach to cases in which an
agency contends that an arbitrator's award enforcing a provision of the
parties' collective bargaining agreement is contrary to management's
rights under section 7106 of the Statute. We held that when an agency
makes such a contention we will examine, as appropriate, the provision
enforced by the arbitrator to determine: (1) if it constitutes an
arrangement for employees adversely affected by the exercise of
management's rights; and (2) if, as interpreted by the arbitrator, it
abrogates the exercise of a management right. We explained that if it
is evident that the provision constitutes an arrangement and, as
interpreted by the arbitrator, does not abrogate management's rights,
the provision is within the range of matters that can be bargained under
the Statute. Accordingly, we held that we will not find that such an
award is contrary to law and we will deny exceptions that contest that
the award is inconsistent with management's rights. We also held that
if the arbitrator's interpretation does result in an abrogation of
management's rights under section 7106(a), the award will be found
deficient as contrary to law, but the contractual provision, susceptible
to a different and sustainable interpretation by a different arbitrator,
will not be affected.
The contractual provisions enforced by the Arbitrator relate to the
assignment of overtime work and, specifically, to the equitable
assignment of overtime among bargaining unit employees. Clearly, these
provisions constitute an arrangement for employees adversely affected by
the exercise of management's right to assign work on an overtime basis.
The provisions, as interpreted and applied by the Arbitrator,
demonstrate that bargaining unit employees rely on overtime work as an
integral part of their livelihoods. In fact, the record establishes
that "overtime accounts for as much as (30-40) percent of a Custom (sic)
Inspector's annual earnings." Award at 2. In our view, the Arbitrator
merely enforced an arrangement that permits bargaining unit employees to
perform overtime work in order to preserve their level of compensation.
We reject the Agency's contention that INS-II does not constitute an
arrangement because it is not a negotiated agreement. Although the
call-out provision of INS-II originally appeared in an Agency directive
that, according to the Agency, predates the collective bargaining
relationship with the Union, the call-out provision on which the
Arbitrator relied appears in a subsequent version of the directive. The
Arbitrator found that the directive constituted a negotiated agreement
and the Agency has presented no persuasive evidence that the
Arbitrator's finding in this regard was incorrect.
We further find that the provisions of the parties' agreements
enforced by the Arbitrator do not abrogate the Agency's right to assign
work or employees or to determine the personnel by which Agency
operations are conducted. In Customs Service, we held that an award
abrogates a management right when the award "precludes an agency from
exercising" that right. Customs Service, 37 FLRA at 314. The
Arbitrator's award in this case does not preclude the Agency from
exercising its rights. First, we find that although the Agency's
ability to assign any employee it chooses to perform work at St.
Petersburg in the Port Director's absence is somewhat circumscribed, the
Arbitrator's enforcement of the agreement provisions does not abrogate
the exercise of the right to assign employees under section
7106(a)(2)(A). Rather, the award only requires the Agency to comply
with the provisions of the agreements that provide for the assignment of
inspectional overtime work to Tampa bargaining unit employees when the
St. Petersburg Port Director is unavailable. Significantly, the award
leaves unimpaired the Agency's right to assign a supervisor to replace
the St. Petersburg Port Director when, as stated by the Arbitrator,
"bona fide supervisory tasks" must be performed. Award at 19. In
addition, it is undisputed that the Agency retains the right to
determine whether bargaining unit employees are qualified to perform
inspectional work.
Second, we find that the Arbitrator's enforcement of the agreement
provisions does not abrogate the exercise of management's rights under
section 7106(a)(2)(B) of the Statute. In this regard, the Agency
retains the right to assign work on an overtime basis. In addition, and
for the same reasons expressed above in connection with the right to
assign employees, the Agency's ability to determine the personnel by
which its operations are conducted is not precluded, even though the
exercise of that right may be limited to some extent. Thus, the Agency
retains the right to determine whether supervisory tasks must be
performed on an overtime basis and, therefore, whether to assign a
supervisor to perform overtime in the Port Director's absence.
Moreover, the Agency retains the right to determine whether the
personnel to which it has assigned overtime work are qualified to
perform such work.
Finally, we find that the Agency's reliance on Authority decisions to
support its view that the award is inconsistent with or abrogates the
exercise of management's rights is misplaced. To the extent the Agency
cites decisions addressing the negotiability of various proposals and
provisions, we stated in Customs Service that the test employed for
determining the negotiability of matters proposed to be bargained under
section 7117 of the Statute is different from that used in determining
whether the enforcement of a negotiated agreement abrogates the exercise
of a management right. To the extent the Agency relies on Authority
decisions in arbitration cases that predate Customs Service, we note
that the test set forth therein was designed to apply to that case and
to all future cases involving exceptions to awards that are claimed to
conflict with the exercise of a management right.
As there is no other basis advanced by the Agency on which to find
the award deficient, we conclude that the Agency has failed to set forth
any ground on which to set aside the award. Accordingly, we will deny
the exceptions.
The Agency's exceptions are denied.
(1) The text of the relevant provisions is found in an Appendix to
this decision.
(2) In light of his conclusion, the Arbitrator found it unnecessary
to address the claimed violation of the Statute. As there is no
exception to the Arbitrator's finding, we also find it unnecessary to
address the asserted statutory violation.
The relevant provisions of the national agreement are as follows:
Article 22, Part I, Section 3.A.
Subject to the needs and requirements of the Service for
differing types, grades, skills and skill levels . . . overtime
earnings will be equalized to the maximum extent possible.
Article 22, Part I, Section 3.B.
Overtime assignments shall be made and rotated on a fair and
objective basis.
The relevant provision of the regional supplemental agreement is as
follows:
Article V, Section 2
Overtime earnings will be equalized to the maximum extent
practicable within each of the following participating groups of
employees within each port or major activity:
1. All permanent full time inspectors GS-5/7/9/11 . . .
2. Part time Inspectors GS-5/7/9/11
3. Seasonal Inspectors
4. Intermittent Inspectors
5. Inspectional Aides
6. Cashiers/Tellers/Customs Aides
7. All other employees who are qualified by training or
experience outside their regular areas of responsibility.
The relevant provisions of INS-II are as follows:
A. Overtime Compensation for Inspectional Activities Defined
2. The services considered "inspectional" are those involving
the examination and control of merchandise, persons and
conveyances. These services are delineated in 19 USC 267 as those
services required to be performed in connection with:
a) lading or unlading cargo;
b) lading of cargo or merchandise for transportation in bond or
for exportation with benefit of drawback;
c) receiving or delivering of cargo on or from the wharf; and
d) unlading; receiving, or examination of passengers' baggage.
. . . .
D. Participation in Overtime
1) Inspector overtime assignments will normally be staffed by
inspectors. Non-inspector assignments may be staffed by other
employees. Employees will be assigned to overtime in the
following descending order:
a) Permanent full-time inspectors including trainees
b) Permanent part-time inspectors
c) Seasonal inspectors
d) Supervisors
e) Intermittent inspectors (WAE)
f) Employees who are qualified by training or experience may be
assigned to overtime activities outside their areas of
responsibility during regular hours, when there is a shortage of
available manpower, or the security or safety of employees or the
proper conduct of the Government's business required the
assignment of other employees who do not normally perform the
duties covered by the overtime assignments.
45 FLRA 1045
45 FLRA NO. 106
NFFE, Local 1636 and U.S. Dept. of Defense, National Guard Bureau,
New Mexico National Guard, Albuquerque, New Mexico (Giles, Arbitrator),
Case No. 0-AR-2256 (Decided September 3, 1992)
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